1993 (1) TMI 98 - HC - Central Excise

Summary

Issues Involved:
1. Classification of the product.
2. Applicability of the extended period of limitation u/s 11A of the Central Excises and Salt Act, 1944.
3. Maintainability of the writ petition under Article 226 of the Constitution of India.

Summary:

1. Classification of the Product:
The petitioner initially challenged the classification of their product "Janatha Cem" under Tariff Item No. 68 but later confined arguments to the question of limitation. The product was claimed to be "Sagol" and exempt from duty under Notification No. 5/1970. However, the Department's tests revealed it to be calcium hydroxide, not cement-based water paint. The Assistant Collector and the Collector confirmed the classification under Tariff Item No. 68, rejecting the petitioner's claim for exemption.

2. Applicability of the Extended Period of Limitation u/s 11A:
The petitioner argued that the extended period of five years u/s 11A should not apply as the Department was aware of the product's manufacture and had taken samples multiple times. The court noted that u/s 11A(1) and its proviso, the extended period applies in cases of fraud, collusion, or wilful misstatement or suppression of facts. The court found that the petitioner had deliberately misdeclared the product as "Sagol" to avail exemption, constituting a misstatement of facts. Hence, the extended period of five years was applicable.

3. Maintainability of the Writ Petition under Article 226:
The petitioner bypassed the available remedy of appeal and filed a writ petition under Article 226. The court acknowledged the availability of an alternative remedy but proceeded with the writ petition due to its admission in 1989 and the lapse of nearly four years. The court emphasized that the scope of enquiry under Article 226 is limited and does not allow for reversing factual conclusions based on available materials unless there is an error apparent on the face of the record or a jurisdictional error.

Conclusion:
The court dismissed the writ petition, upholding the Department's classification and the applicability of the extended period of limitation u/s 11A. The court found no error in the factual conclusions of the authorities and ruled that the petitioner's misstatement of facts justified the extended limitation period. The writ petition was dismissed with no order as to costs.