1995 (11) TMI 96 - HC - Central Excise

Issues Involved:
1. Jurisdiction of the Collector and Assistant Collector of Central Excise.
2. Classification of Tyre Cord Fabric under Central Excise Tariff Act.
3. Alternative remedy and the exercise of jurisdiction under Article 226 of the Constitution.
4. Adjudication and appeal process under the Central Excises and Salt Act, 1944.

Detailed Analysis:

1. Jurisdiction of the Collector and Assistant Collector of Central Excise:

The petitioner challenged the jurisdiction of the Collector and Assistant Collector of Central Excise to adjudicate the classification of tyre cord fabric under Heading 59.05 when excise duty had already been paid under Heading 59.02. The court held that the Collector and Assistant Collector of Central Excise have the authority to adjudicate under Section 11A of the Central Excises and Salt Act, 1944. The court noted, "It is the adjudicatory authority, namely the Central Excise Officer, who is entitled to determine as to whether the particular goods fall under the Heading 59.02 or 59.05."

2. Classification of Tyre Cord Fabric under Central Excise Tariff Act:

The classification of tyre cord fabric under the Central Excise Tariff Act was a central issue. The court highlighted the significant differences in excise duty depending on whether the fabric falls under Heading 59.02 or 59.05. Heading 59.02 provides a vast concession, whereas Heading 59.05 requires heavier duty payments. The court stated, "In the event if it is held that tyre cord fabric is found to be of high tenacity yarn of polyamides, polyesters, or viscose rayon, the appellant is not liable to pay basic duty and even in additional duty, there is a concession."

3. Alternative Remedy and Exercise of Jurisdiction under Article 226 of the Constitution:

The court emphasized the principle that the existence of an alternative remedy bars the entertainment of a petition under Article 226 unless there is a complete lack of jurisdiction or violation of natural justice. The court referenced the Supreme Court's decision in A.V. Venkateswaran, which held, "Existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless there is complete lack of jurisdiction in the officer or authority to take the action impugned."

4. Adjudication and Appeal Process under the Central Excises and Salt Act, 1944:

The court outlined the statutory appeal process under Sections 35 and 35B of the Central Excises and Salt Act, 1944. Appeals against orders by the Assistant Collector lie with the Collector (Appeals), and those against the Collector lie with the Appellate Tribunal. The court stated, "If the order is passed by the Assistant Collector of Central Excise, the appeal would lie to the Collector (Appeals) under Section 35 of the Act and if the order is passed by the Collector of Central Excise, the appeal would lie to the Appellate Tribunal under Section 35-B of the Act."

Conclusion:

The court concluded that the petitioner should avail the statutory remedy of appeal rather than seeking relief under Article 226. The court set aside the single Judge's order and directed the Appellate Tribunal and Collector (Appeals) to entertain the appeals if filed within 30 days, without considering the limitation period. The court clarified, "We further direct that if the appellant files an appeal before the Appellate Tribunal... within a period of thirty (30) days from today, the Appellate Tribunal shall decide the appeal on merits and in accordance with law, without going into the question of limitation." The court also emphasized compliance with Section 35-F regarding the deposit of duty and penalty.

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