1985 (9) TMI 92 - HC - Central Excise

Summary

Issues:
1. Eligibility for exemption and concessional rate of duty under Notification No. 8/80-C.E.
2. Barred by time - demand made by the Assistant Collector.
3. Maintainability of the writ petition due to alternative remedy under Section 350 of the Central Excises and Salt Act, 1944.
4. Lack of jurisdiction by the Assistant Collector and Collector, Central Excise.
5. Question of fact regarding the total clearance amount.
6. Question of limitation regarding the notice issued by the Assistant Collector.

Analysis:
1. The writ petition challenged an order by the Custom Excise and Gold Control Appellate Tribunal regarding the eligibility for exemption and concessional rate of duty under Notification No. 8/80-C.E. The Tribunal held that the petitioners were not entitled to the concession as their clearance value exceeded Rs. 15 lakhs on 18th September, 1981. The petitioners argued that their total clearances were below Rs. 15 lakhs until that date, thus, they were eligible for the concession. However, the Tribunal's decision was upheld, stating that the clearance value on 18th September, 1981 was considered, denying the petitioners' claim.

2. The petitioners contended that the notice issued by the Assistant Collector on 19th November, 1981 was barred by time as the cause of action arose on 1st April, 1981. The Court rejected this argument, stating that the clearance value reached Rs. 15 lakhs only on 18th September, 1981, and the notice was issued within two months of that date, thus not being time-barred.

3. The issue of maintainability of the writ petition was raised due to the availability of an alternative remedy under Section 350 of the Central Excises and Salt Act, 1944. The respondent argued that the writ petition should not be entertained as the petitioners had the option to seek a reference under the Act. The Court referred to previous judgments emphasizing that where a statutory remedy is available, a writ petition may not be maintainable. The Court noted that the petitioners had an alternative remedy but proceeded to address the issues raised.

4. The petitioners challenged the jurisdiction of the Assistant Collector and Collector, Central Excise, claiming that they lacked jurisdiction to realize any amount as tax since the total clearance did not exceed Rs. 15 lakhs. The Court found that the Tribunal's finding that the clearance exceeded Rs. 15 lakhs on 18th September, 1981 had to be accepted, dismissing the argument of lack of jurisdiction.

5. The Court rejected the petitioners' attempt to dispute a question of fact regarding the total clearance amount, stating that such disputes cannot be raised in writ jurisdiction. The Tribunal's finding that the clearance exceeded Rs. 15 lakhs on 18th September, 1981 was upheld.

6. Lastly, the Court addressed the question of limitation concerning the notice issued by the Assistant Collector. The petitioners claimed the notice was barred by time, but the Court ruled that since the clearance value reached Rs. 15 lakhs on 18th September, 1981, the notice issued within two months of that date was not time-barred. Consequently, the writ petition was dismissed with costs to the answering respondents.