1991 (11) TMI 71 - HC - Central Excise

Issues Involved:
1. Classification of white cement under sub-head 2502.20 or 2502.90.
2. Premature filing of the writ petition.
3. Availability of an alternative remedy.
4. Parallel remedies.
5. Jurisdiction of the court under Article 226 of the Constitution.

Issue-wise Detailed Analysis:

1. Classification of White Cement:
The petitioner sought the reclassification of white rapid hardening cement under sub-head 2502.20 instead of 2502.90, arguing that it should be assessed at a lower excise duty rate of Rs. 215/- P.M.T. instead of 40% ad valorem. The petitioner contended that their product's physical properties and chemical composition matched those of rapid hardening cement. The respondent disputed this, asserting that the matter was still under consideration and that the petitioner had not provided sufficient evidence to support their claim. The court noted that the classification of white cement as rapid hardening cement by the Collector, Central Excise (Appeals), New Delhi, in a similar case involving J.K. Cement Works, was based on various test reports. The petitioner had not provided comparable evidence, leading to several disputed and complicated questions of fact that could not be resolved under Article 226 of the Constitution.

2. Premature Filing of the Writ Petition:
The respondent argued that the writ petition was premature since the matter regarding the revision of the classification list was still pending before the respondent No. 1. The court agreed, noting that the respondent had not yet refused to revise the classification list, as indicated by the letter dated 7-10-1991 (Annexure-2). The court cited several precedents supporting the view that the writ petition was premature and should not be entertained.

3. Availability of an Alternative Remedy:
The respondent contended that the petitioner had an alternative remedy by way of filing an appeal under Section 35B of the Central Excises & Salt Act, 1944. The court upheld this objection, stating that the petitioner should exhaust the alternative remedies available under the statute before approaching the court. The court referenced several Supreme Court and High Court decisions emphasizing the need to follow the statutory appeal process before seeking judicial intervention.

4. Parallel Remedies:
The respondent argued that the petitioner could not pursue two parallel remedies simultaneously. The court agreed, noting that the petitioner had already submitted a revised classification list under Rule 173B for approval and sought similar relief in the writ petition. The court cited precedents indicating that parallel remedies should not be allowed.

5. Jurisdiction of the Court under Article 226:
The respondent asserted that the court should not invoke its jurisdiction under Article 226 in such matters, as the issues should be left to the authorities and tribunals constituted under the relevant statutes. The court concurred, referencing a consistent view that disputes related to tax assessments should be resolved by the designated authorities and tribunals.

Conclusion:
The court found merit in the preliminary objections raised by the respondents and declined to grant the prayers (i) to (vii) sought by the petitioner. However, considering the potential closure of the petitioner's factory and the resultant unemployment, the court directed the respondents to provisionally assess the excise duty under sub-head 2502.20, provided the petitioner executed a bond and furnished a bank guarantee for the differential amount with interest. The writ petition was disposed of with these directions, and no order as to costs was made.

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