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GUJARAT NATIONAL LAW U NIVERSITY
I NTRA-MOOT COURT COMPETITION
In the Hon’ble Supreme Court of India
STATE OF MAHARASHTRA (APPELLANT)
V.
TEXTILES TRADE PROMOTION COUNCIL
(R ESPONDENT)
WRITTEN SUBMISSION O N BEHALF OF R ESPONDENT (R-24)
Case no....... of 2014
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TABLE OF CONTENTS
1. Index of Authorities………………………………………………………………….……..3
2. Table of Cases……………………………………………………………………………...4
3. List of Abbreviations and Statutes Referred……………………………………………….5
4. Statement of Jurisdiction………………………………………………………………...…6
5. Statement of Facts………………………………………………………………………….7
6. Issues Raised………………………………………………………………………………..8
7. Summary of Arguments……………………………………………………………….........9
8. Arguments Advanced…………………………………………………………….……….11
9. Prayer………….……………………………………………………………………….….
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INDEX OF AUTHORITIES
BOOKS REFERRED
Basu DD, „Commentary on the Constitution of India Volume 5‟ (2008), 8 th Edition,
Lexis Nexis, Butterworths Wadhwa, Nagpur
Basu DD, „Commentary on the Constitution of India Volume 6‟ (2008), 8 th Edition,
Lexis Nexis, Butterworths Wadhwa, Nagpur
Basu DD, „Commentary on the Constitution of India Volume 7‟ (2008), 8 th Edition,
Lexis Nexis, Butterworths Wadhwa, Nagpur
Shukla VN, „ Constitution of India‟ (2103), 12 th Edition, Eastern Books Company,
Lucknow
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TABLE OF CASES
Pritam Singh vs. State- AIR 1950 SC 169
Kapildeo Singh vs. State Emperor- AIR 1950 FC 80
Bihar Legal Support Society vs. Chief Justice of India- AIR 1987 SC38
Dhakeswari Cotton Mills vs. CIT-(1954) 26 ITR 775 (SC)
Dunlop India Ltd. vs. Union of India-1977 AIR 597
Shaw Wallace vs. Workmen- AIR 1978 SC 977
State of Orissa vs. Bina Pani Devi-[1967] 2 S.C.R. 625.
A.K. Kraipak vs. Union of India-[1970] 1 S.C.R. 457
Koshy George v. The University of Kerala-[1969] 1 S.C.R. 317,
Sumer Chand Jain v. Union of India
Indian National Congress v. Institute of Social Welfare- AIR 2002 SC 2158
Cooper vs. Wilson-(1937) 2 KB 309
Queen vs. Dublin Corporation-(1878) 2 Ir. R. 371
Rex vs. Electricity Commissioners-(1924) 1 KB 17
Schmidt v. Secretary of State for Home Affairs-[1968] 112 AC 690
Maneka Gandhi v. Union of India-(1978)1 SCC 248
Bar Council of India vs. High Court Kerala-(2004) 6 SCC 311
Calico Mills Ltd. v. State of Madhya Pradesh- AIR 1961 MP 257
Geeta enterprises v. State of Uttar Pradesh and Ors- AIR1983SC1098
BSNL v. Union of India- AIR 2006 SC 1383
Federation of Hotel & Restaurant Association of India Vs. Union of India -1989 178 ITR
97(SC)
Larsen & Toubro Vs. Union of India- (1993) 1 SCC 365
Godfrey Phillips (I) Ltd.& Anr. vs. State of U.P.& Ors.- 2005 AIR 1103, 2005 (1)
SCR 732
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STATUTES REFFERED
Bombay Entertainment Duty Act, 1923
LIST OF ABBREVIATIONS
1. &…………………………….....................................................................................and
2. AIR………………………………......................................................All India Reporter
3. Art. ……………………………….......................................................................Article
4. Corp………………………………...............................................................Corporation5. Hon‟ble ……………………….........................................................………..honorable
6. J……………………………….............................................................................Justice
7. Ltd. …………………….............................................................………….........Limited
8. Para. ………………….........................................................……………........paragraph
9. Pvt.........................................................................................................................Private
10. Pg. ………………………………............................................................................Page
11. Rs………………………………..........................................................................Rupees
12. s ……………………………..............................................................…..............section
13. SC………………………................................................……….............Supreme Court
14. SCC…………………......................................……………..........Supreme Court Cases
15. Supp……………………………...............................................…..........Supplementary
16. v. ………………………………...........................................................................Versus
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STATEMENT OF JURISDICTION
The State of Maharashtra has approached The Hon‟ble Supreme Court of India under Article
136 1 of the Constitution of India by filing a Special Leave Petition. The Respondent submit
the Jurisdiction of the Hon‟ble Court.
1 Article 136 in The Constitution Of India 1949,Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.
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STATEMENT OF FACTS
Textiles Trade Promotion Council (Respondent) is a company incorporated under
Section 25 of the Companies Act, 1956 i.e Companies established with no profit
motive.
Company organizes annual exhibitions titled the International Apparel show which
provides a platform for interaction between all traders. The organizers charge high
entry fee in order to encourage only serious business visitors to attend the shows. The
exhibition generates lot of revenue to the state and nomial income is earned by the
organizers. The Company paid lot of entertainment duty to the Appellant under protest since an
No objection certificate was not issued until the duty was paid to the Collector.
IAS 2014 was approaching, the respondent wanted to ensure no last minute problem
and applied for the NOC and made it clear to the State that no Duty was payable, but
the Police authorities instituted on the NOC from the Collector. Since the exhibition
was fast approaching the respondent paid the duty again on protest.
Through a letter, the Respondent made an application to the Additional collector to
refund the earlier deposits since it was paid under protest as the said act was not
applicable on the exhibition.
The Additional Collector without hearing the Company passed an order which
directed the Company to pay the due of the exhibition which happened in 2013 and
was given 7 days to comply with the orders otherwise necessary step would be taken
to ensure the payment.
The Respondent approached the High Court against the said order where the High
Court gave an order in the favour of the respondent
Hence the State has approached this Hon‟ble Court
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ISSUES RAISED
1. Special Leave Petition under article 136 is not maintainble in the Supreme Court of
Indi this case
2. Was the Assistant Collector under an obligation to give a hearing to the Company. If,
yes, whether such denial of such opportunity goes to the root of the matter and vitiates
the proceedings?
3. Does the Trade exhibition organised by the Respondent falls under the definition of
the Entertainment as defined under the Act and is the Company liable to payable to
duty of such exhibition?
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SUMMARY OF ARGUMENTS
Issue No 1: Special Leave Petition under article 136 is not maintainable in the Supreme
Court of India this case
It is the humble submission of the Respondents before this Hon‟ble Court that the present
petition seeking Special Leave under Article 136 is not maintainable. The Supreme Court
made it abundantly clear that it can only exercise this wide discretionary power sparingly and
in exceptional cases. If any mistake of law is brought to the notice of the Court or it finds that
there has been a grave miscarriage of justice, the Court can exercise this wide discretionary
power that has been granted to adjudicate and decide upon the matter. The Respondents
contend that the dispute was satisfactorily decided upon by the High Court and that there are
no grounds on which the petition of the Petitioners can be maintained
Issue No 2: Was the Assistant Collector under an obligation to give a hearing to the
Company. If, yes, whether such denial of such opportunity goes to the root of the matter and
vitiates the proceedings?
The Respondent submits to the Hon‟ble Court that the Assessing office under the Bombay
Entertainment Duty Act, 1923, has not followed the due process of the law. The Assessing
officer has failed to give notice to the respondent and proceed on the merits of the case. It is
rudimentary principle of law that the every person should be heard before being condemned
or punished , which has not followed in this particular case. The Respondent are denied an
opportunity of being heard by the statutory authority which is the mandatory obligation of the
Collector under Section 4B of the 1923 act. The act of the collector in this particular case
goes against various precedents of the this Hon‟ble Court. The respondent submits that
Collector being mandated under the act for collection of entertainment duty has failed in the
primary obligation of issuing notice to the Respondent, which goes to the root of this matter.
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Issue No 3: Does the Trade exhibition organised by the Respondent falls under the definition
of the Entertainment as defined under the Act and is the Company liable to payable to duty of
such exhibition.
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ARGUMENTS ADVANCED
Issue No1. Special Leave Petition under article 136 is not admissible in the Supreme
Court of Indi this case.
It is the humble submission of the respondents before the Hon‟ble Supreme Court is that the
present SLP under Art. 136 of the Constitution is not admissible. The jurisdiction of this
Hon‟ble Court can be invoked only if the matter involves a “substantial legal question”, i.e.,
if there is a constitutional or legal issue upon which this Hon‟ble Court deems it necessary to
re-adjudicate. The scope of appeal under Art. 136 is restricted to the aforementioned, and the
Court is vested with the discretionary power to grant Special Leave or refuse it.
The present case pertains to alleged non-payment of entertainment tax and it is the contention
of the Respondents that it does not involve a substantial legal or constitutional question.
Entertaining the present case would go against the stand of this Hon‟ble Court in which it
stated as follows: “The court will not grant special leave, unless it is shown that exceptional
and special circumstances exist, that substantial and grave injustice has been done and that
the case in question presents features of sufficient gravity to warrant a review of the decision
appealed against”.
1. The Respondent humbly submits before this Hon‟ble Court that it may not grant
special leave to appeal under the plea to adjudicate and decide upon the dispute at
hand as the Respondents were not afforded with an opportunity to be heard by the
Additional Collector at the time of passing order and as a result, did not meet the ends
of justice.
2. In the case of Pritam Singh v. State2, it was observed that the wide discretionary
power conferred upon this Hon‟ble Court can be exercised sparingly and in
exceptional cases. It is the contention of the Respondents that the present case does
not involve such an exceptional question of law for the Hon‟ble Supreme Court to
delve interfere and grant special leave.
3. The first instance of the principles being laid down for the grant of Special Leave can
be seen in the case of Kapildeo Singh v. King Emperor 3 adjudicated upon by the
2 AIR 1950 SC 169
3 AIR 1950 FC 80
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Federal Court. Though this Hon‟ble Court is not bound by the judgments of the
Federal Court, the principles provide us with an understanding as to the circumstances
under which Special Leave to Appeal can be granted. It was stated in the
af orementioned case that “exercise of prerogative takes place only where it is shown
that injustice of a serious and substantial character has occurred” or in a situation
where there issue pertaining to admission of improper evidence by a lower court. It is
abundantly clear from the facts of the present case that no grave injustice has been
meted out to the Appellants and neither has there been admission of improper
evidence against the Appellants. Thus, the Respondent contends present petition is not
maintainable.
4. The purpose and scope of Article 136 was clarified by the Hon‟ble Supreme Court in
the case of Bihar Legal Support Society v. Chief Justice of India4. It was held that the
extraordinary jurisdiction of the Supreme Court under Article 136 could only be
invoked for the purpose of correcting a grave miscarriage of justice, and if the
Supreme Court found that such injustice had been meted out, it would grant special
leave to adjudicated and decide the case. In the present case, there has been no such
injustice meted out by the Hon‟ble High Court in its order. In fact it has only
corrected the injustice meted out by the Additional Collector. Thus, it provides no
scope for appeal.
5. In several cases, including Dhakeswari Cotton Mills v. CIT5 and Dunlop India Ltd. v.
Union of India6, it has been made abundantly clear that the Hon‟ble Supreme Court
that under Art. 136, the Supreme Court does not interfere with the current finding
unless these findings are vitiated by errors of law or if the conclusion reached by the
lower courts regarding the jurisdiction concerning the supervising of functioning of
these bodies. However, in the present case there has been no error of law and neither
has there been a mistake in assuming jurisdiction and thus, this Petition is not
maintainable.
6. The Hon‟ble Supreme Court has also stated in the case of Shaw Wallace v. Workmen 7
that its jurisdiction can only be invoked when there has been manifest injustice meted
out, a fundamental legal error or perverse finding of facts. In the present case neither
of the above requirements are met. Thus, the present case is not maintainable.
4 AIR 1987 SC38
5
(1954) 26 ITR 775 (SC)6 1977 AIR 597
7 AIR 1978 SC 977
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7. The Hon‟ble Supreme Court, in general, does not interfere with the concurrent
findings of a Tribunal or a High Court unless there is a mistake of law or omission of
some important piece of evidence from consideration. In the present case, neither of
the above criteria have been fulfilled and thus, in light of it, there is no ground for
maintainability.
In the light of the above contentions, the Respondents respectfully submit that the present
petition is not maintainable.
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Issue No 2: Was the Assistant Collector under an obligation to give a hearing to the
Company. If, yes, whether such denial of such opportunity goes to the root of the matter and
vitiates the proceedings?
The Respondent submits to the Hon‟ble Court that the Assessing office under the Bombay
Entertainment Duty Act, 1923, has not followed the due process of the law. The Assessing
officer has failed to give notice to the respondent and proceed on the merits of the case. It is
rudimentary principle of law that the every person should be heard before being condemned
or punished , which has not followed in this particular case. The Respondent are denied an
opportunity of being heard by the statutory authority which is the mandatory obligation of the
Collector under Section 4B of the 1923 act. The act of the collector in this particular case
goes against various precedents of the Hon‟ble Court. The respondent submits that Collector
being mandated under the act for collection of entertainment duty has failed in the primary
obligation of issuing notice to the Respondent, which goes to the root of this matter.
Respondent rely on the State of Orissa v. Bina Pani devi8 where the court held that .
“It is true that the order is administrative in character, but even an admini strative order
whi ch involves civi l consequences as already stated must be made consistently with the rules
of natural justice after informing the first respondent of the case of the State, the evidence in
support thereof and after giving an opportunity to the first respondent of being heard and
meeting or explaining the evidence.”
The respondent submits that the Court gave effect the principle of natural justice wherever
the matter had “civil consequences”. Respondent has not been given an hearing be fore the
statutory authority which has lot of civil consequences, since the respondent have been forced
to pay the entertainment duty .
The respondent also relies on A.K Kripak v. Union of India9 where this Hon‟ble Court held
that
“The aim of the rules of natural justice is to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in areas not covered by any law validly
made. In other words they do not supplant the law of the land but supplement it. The concept
of natural justice has undergone a great deal of change in recent years. In the past it was
8 [1967] 2 S.C.R. 625.
9 [1970] 1 S.C.R. 457
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thought that it included just two rules namely (1) no one shall be a judge in his own case
(Nemo debet esse judex propria causa) and (2) no decision shall be given against a party
without affording him a reasonable hearing (audi alteram partem). Very soon there- after a
third rule was envisaged and that is that quasi- j udicial enquir ies must be held in good
fai th, without bias and not arbitrarily or unreasonably.
But in the course of years many more subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that unless the authority concerned
was required by the law under which it functioned to act judicially there was no room for the
application of the rules of natural justice. The validity of that limitation is now questioned. If
the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see
why those rules should be made inapplicable to administrative enquiries. Often times it is not
easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries.
Enquiries which were considered administrative at one time are now being considered as
quasi judicial in character. Arriving at a just decision is the aim of both quasi- judicial
enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry
may have more far reaching effect than a decision in a quasi-judicial enquiry”.
As observed by this Court in Suresh Koshy George v. The University of Kerala10
“the rules of natural justice are not embodied rules. What particular rule of natural justice
should apply to a given case must depend to a great extent on the facts and circumstances of
that case, the framework of the law under which the enquiry is held and the constitution of
the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made
before a court that some principle of natural justice had been contravened the court has to
decide whether the observance of that was necessary for a just decision on the facts of that
case.”
In Sumer Chand Jain v. Union of India11 the Hon‟ble court held that when there is denial of
natural justice the entire matter is vitiated since the denial of basic principle goes the root of
the matter.
10 [1969] 1 S.C.R. 317,
11 Decision of the Supreme Court on 4
th May 1967
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The Collector being an quasi- judicial authority under the statue has an obligation for giving
an opportunity of hearing to the respondent. The respondent relies on the Indian National
Congress v. Institute of Social Welfare12 where the court held that “the dictionary meaning of
“:the word quasi is 'not exactly' and it is just in between a judicial and administrative
function. It is true, in many cases, the statutory authorities were held to be quasi-judicial
authorities and decisions rendered by them were regarded as quasi judicial, where there were
contest between the two contending parties and the statutory authority was required to
adjudicate upon the rights of the parties. In Cooper vs. Wilson 13, it is stated that "the
definition of a quasi-judicial decision clearly suggests that there must be two or more
contending parties and an outside authority to decide those disputes…….. Thus, where there
is a lis or two contesting parties making rival claims and the statutory authority under the
statutory provision is required to decide such a dispute, in the absence of any other attributes
of a quasi-judicial authority, such a statutory authority is quasi- judicial authority.”
In Queen vs. Dublin Corporation14, it was held thus :
" In this connection the term judicial does not necessarily mean acts of a Judge or legal
tribunal sitting for the determination of matters of law, but for purpose of this question, a
judicial act seems to be an act done by competent authority upon consideration of facts and
circumstances and imposing liability or affecting the rights. And if there be a body
empowered by law to enquire into facts, makes estimates to impose a rate on a district, it
would seem to me that the acts of such a body involving such consequence would be judicial
acts."
In Rex vs. Electricity Commissioners15 Atkin L.J., stated that “when anybody of persons
having legal authority to determine questions affecting the rights of subjects and having the
duty to act judicially, such body of persons is a quasi-judicial body and decision given by
them is a quasi-judicial decision. The Commissioner, after making an enquiry and hearing the
objections was required to pass order.”
12 AIR 2002 SC 2158
13
(1937) 2 KB 30914 (1878) 2 Ir. R. 371
15 (1924) 1 KB 17
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In summary, it can be said that from aforesaid decisions, where a statutory authority is
empowered to take a decision which affects the rights of persons and such an authority under
the relevant law required to make an enquiry and hear the parties, such authority is quasi-
judicial and decision rendered by it is a quasi-judicial act.
In Schmidt v. Secretary of State for Home Affairs16 approved.
“There can be no distinction between a quasi-judicial function and an administrative function
for the purpose of principles of natural justice. The aim of both administrative inquiry as well
as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is
calculated to secure justice or to put it 'negatively, to prevent miscarriage of justice, it is
difficult to see why it should be applicable to quasi- judicial enquiry and not to administrative
enquiry. It must logically apply to both. It cannot be said that the requirements of fairplay in
action is any the less in an administrative enquiry than in a quasi-judicial one. Sometimes an
unjust decision in an administrative enquiry may have far more serious consequences than a
decision in a quasi-judicial enquiry and hence rules of natural justice must apply, equally in
an administrative enquiry which entails civil consequences.”
Finally, the respondent relies on the Maneka Gandhi v. Union of India17, the facts of the case
can be summarized in a nutshell, the appellant passport was impounded and was not given an
hearing by the statutory authority, who was under no obligation to give the appellant an
hearing but the 7 judge bench this Hon‟ble Court followed the “due process of law” which
was until not recognized by the Hon‟ble Court till then.
The respondent would like the take this court through the paragraphs of the land mark
Judgment
“Sections 5, 6 and 10 of the impugned legislation (Passpor t Act) must be tested even under
Art. 21 on canons of processual justice to the people outlined above. Hearing is obligatory-
meaningful hearing, flexible and realistic, according to circumstances' but not ritualistic and
wooden. In exceptional cases and emergency situations, interim measures may be taken, to
avoid the mischief of the passportee becoming an. escapee before the hearing begins. "Bolt
the stables after the horse has been stolen" is not a command of natural justice. But soon after
the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice.
And when a prompt final order is made against the applicant or passport holder the reasons
must be disclosed to him almost invariably save in those dangerous cases, where irreparable
injury will ensue to the State. A government which revels in secrecy in the field of people's
16 [1968] 112 AC 690
17 (1978)1SCC 248
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liberty not only acts against democratic decency but busies itself with its own burial. That is
the writing on the wall if history were teacher, memory our mentor and decline of liberty not
our unwitting endeavor. Public power must rarely hide its heart in an open society and
system. Article 14 has a pervasive procession potency and versatile quality, equalitarian in its
soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness.
The Legislature by making an express provision may deny a person the right to be heard.
Rules of natural justice cannot be equated with the fundamental rights. Their aim is to secure
justice and to prevent miscarriage of justice. They do not supplant the law but supplement it.
If a statutory provision can be read consistently with the principles of natural justice the court
should do so but if a statutory provision that specifically or by necessary implication excludes
the application of any rules of natural justice this Court cannot ignore the mandate of the
legislature or the statutory authority and read into the concerned provision the principles of
natural justice. To a limited extent it may be necessary to revoke or to impound a passport
without notice if there is real apprehension that the holder of the passport may leave the
country if he becomes aware of any intention on the part of the Passport Authority or the
Government to revoke or impound the passport but that itself would not justify denial of an
opportunity to the holder of the passport to, state his case before the final order is passed. The
legislature has not by express provision excluded the right to be heard.
We may commence the discussion of this question with a few general observations to
emphasise the increasing importance of natural justice in the field of administrative law.
Natural justice is a great humanising principle intended to invest law with' fairness and to
secure justice and over the years it has grown into a widely pervasive rule affecting large
areas of administrative action.”
Thus, the soul of natural justice is fair play in action' and that is why it has received the
widest recognition throughout the democratic world. In the United States, the right to an
administrative hearing is regarded as essential requirement of fundamental fairness. And in
England too it has been held that 'fair play in action' demands that before any prejudicial or
adverse action is taken against a person, he must be given an opportunity to be heard18.
18 Bar Council of India vs. High Court Kerala, (2004) 6 SCC 311
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Considering various precedents as mentioned above and relying heavily on the Maneka
Gandhi Judgment, where the 7 Judge Bench of this Hon‟ble Court recognized the importance
of the Principles of Natural Justice, the Respondent humbly submits to this Court to held that
Order of the Collector void on the grounds of the statutory authority denied an opportunity of
hearing to the respondent which was an obligation under Section 4B (2) of the Bombay
Entertainment Duty Act,1923. The acts of theCollector has caused lot of “civil consequences”
to the Respondent which puts the Respondent into lot of hardships. Respondent being a
company who are incorporated under Section 25 of the Companies, which speaks about the
companies incorporated not for profit has been ordered to pay extra duty on the exhibition
conducted by us without giving an opportunity of hearing or notice, since the issue goes to
the root of the matter, the Respondent urge the Hon‟ble Court to dismiss the case and to
affirm the High Court decision.
.
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Issue No 3.: Does the Trade exhibition organized by the Respondent falls under the
definition of the Entertainment as defined under the Act and is the Company liable to payable
to duty of such exhibition?
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PRAYER
Wherefore in the lights of the statement of issues, arguments advanced and authorities cited
before the Honourable bench of the Hon‟ble Supreme Court of Indi,the Counsel for
Respondents most humbly prays to this Honourable this Court to adjudge and declare the
following:
1. The Stay order be vactated
2. Special Leave Petiton be dismissed
3. And Refund of the extra duty paid by the Respondent with interest as applicable.
. OR
May pass any order, decree or judgement in the light of Justice, Equity and Good Conscience.
For which the counsel for the Appellant shall pray duty bound as ever most humbly to this
Honourable Court.
All of which is most respectfully, humbly and equitably submitted and affirmed before this
Honourable Court.
Sd/-
Respondents