1990 (4) TMI 57 - HC - Central Excise

Writ jurisdiction - When availment of the alternative remedy is not feasible writ jurisdiction exercisable

Summary

Issues:
1. Jurisdiction of the first respondent to issue show-cause notice under Rule 174 of the Central Excise Rules.
2. Liability of the petitioner-company to pay duty under Rule 9(2) of the Central Excise Rules.
3. Availability of alternative remedy and maintainability of the writ petition.
4. Marketability of the goods and applicability of excise duty under Section 3 of the Central Excise Act.
5. Impact of the introduction of Section 11-A of the Central Excises and Salt Act on the jurisdiction of the first respondent.

Detailed Analysis:
1. The petitioner challenged the jurisdiction of the first respondent to issue a show-cause notice under Rule 174 of the Central Excise Rules. The petitioner argued that the goods in question were not marketable commodities and, therefore, excise duty was not payable under Section 3 of the Act. The petitioner contended that the first respondent lacked jurisdiction to issue the notice. The respondents did not file a counter-affidavit, and the court held that the resin master and dipping solution were not liable to duty under the Tariff Schedule, setting aside the order of the first respondent.

2. The first respondent held that the petitioner-company had been manufacturing resin master from a specific date and was liable to pay duty under Rule 9(2) of the Central Excise Rules. The first respondent imposed a penalty on the petitioner-company. However, the court found that the resin master and dipping solution were not liable to duty under the Tariff Schedule, and therefore, the order of the first respondent was set aside.

3. The respondents argued that the writ petition was not maintainable as there was an alternative statutory remedy available, i.e., an appeal to the Appellate Collector of Central Excise. The court rejected this argument, citing that the petitioner claimed lack of jurisdiction on the part of the first respondent and considering the prolonged pendency of the case. The court held that the existence of an alternative remedy was not a ground for refusing the relief of a writ of certiorari.

4. The court analyzed the marketability of the goods and applicability of excise duty under Section 3 of the Central Excise Act. Referring to previous judgments, the court found that the resin master and dipping solution were not marketable commodities and, therefore, were not liable for excise duty under the Tariff Schedule.

5. The second contention raised was regarding the impact of the introduction of Section 11-A of the Central Excises and Salt Act on the jurisdiction of the first respondent. The court noted that the order was passed after the introduction of Section 11-A, and the deletion of Rules 10 and 173-J. The court held that the order passed after the deletion of the rules was without jurisdiction, leading to the quashing of the order of the first respondent.

In conclusion, the court allowed the writ petition, quashing the order of the first respondent dated 20-5-1981, citing reasons related to lack of jurisdiction, non-marketability of the goods, and the impact of statutory changes on the proceedings.