1998 (11) TMI 135 - HC - Central Excise

Summary

Issues:
1. Maintainability of the writ petition under Article 226 without exhausting alternative remedy of appeal.

Analysis:
The respondent in this case sought the dismissal of a writ petition, CWP No. 8498 of 1990, on the grounds of it being premature as the petitioner had not exhausted the alternative remedy of appeal. The petitioner had filed the writ petition under Article 226 of the Constitution to challenge a show-cause notice issued by the Additional Collector, Central Excise, demanding Central Excise Duty. The petitioner argued that the demand was illegal as excise duty can only be levied on manufactured and marketable goods. The petitioner contended that the writ petition was not premature as the demand itself was without jurisdiction. The petitioner also cited a case to support the argument that a party cannot be compelled to exhaust alternative remedies if a writ petition is pending for a significant period.

The court acknowledged the legal principle cited by the petitioner but found it inapplicable to the present case. The court noted that the issues involved, such as whether the petitioner was engaged in the fabrication of certain items and whether those items were sold or assembled at their proper place, were questions of fact. The court emphasized that such factual determinations cannot be made in a petition under Article 226 of the Constitution. Referring to previous judgments, the court highlighted that when a statute provides a complete mechanism to challenge an assessment order, the aggrieved party must utilize the remedy provided by the statute rather than resorting to a writ petition. The court cited relevant cases to support this principle.

Ultimately, the court found that the Assessing Authority had not yet considered the case based on any reply from the petitioner. Therefore, the court deemed the writ petition premature and ordered its dismissal. However, the court allowed the petitioner to file a reply to the show-cause notice within a specified timeframe, indicating that the objection regarding prematurity would not be raised if the reply was submitted within the given period. The court directed that no action should be taken against the petitioner until the Assessing Authority made a final decision on the matter.

In conclusion, the court ruled in favor of the respondent's application to dismiss the writ petition as premature, emphasizing the importance of exhausting alternative remedies provided by the statute before seeking relief through a writ petition under Article 226 of the Constitution.