2004 (4) TMI 434 - HC - Central Excise

Writ jurisdiction - Alternative remedy - Departmental clarifications - Interpretation of statute - Fiscal statute

Issues Involved:
1. Classification of HDPE/PP tapes under the Central Excise Tariff Act, 1985.
2. Validity of the Superintendent's rejection of the revised classification list.
3. Applicability of the Madhya Pradesh High Court's decision in Raj Pack Well Ltd. v. Union of India.
4. Binding nature of instructions issued under Section 37B of the Central Excise Act, 1944.
5. Determination of whether "strips" and "tapes" are distinct commodities in commercial parlance.
6. Jurisdiction of the High Court to decide disputed questions of fact in writ jurisdiction.

Detailed Analysis:

1. Classification of HDPE/PP Tapes:
The primary issue is whether HDPE/PP tapes are classifiable under Heading No. 39.20, 39.22, or 39.26 of the Central Excise Tariff Act, 1985. The petitioner initially classified the product under sub-heading 5406.90 but later sought to classify it under Heading 39.26, sub-heading 3926.90. The petitioner argued that HDPE/PP tapes should not be classified under Heading 39.20, as it does not specifically mention "tape." The court noted that the Madhya Pradesh High Court in Raj Pack Well Ltd. v. Union of India had held that HDPE strips and tapes fall under Heading No. 39.20, sub-heading No. 3920.32, and not under Chapter 54.

2. Validity of Superintendent's Rejection of Revised Classification List:
The petitioner claimed that the Superintendent's letter dated 14th August 1989, rejecting the revised classification list without specifying any reason or granting an opportunity for a personal hearing, amounted to a rejection of the revised classification list. The court noted that the petitioner had acted according to the earlier classification after receiving the letter and subsequently filed the writ petition challenging the Superintendent's decision.

3. Applicability of the Madhya Pradesh High Court's Decision:
The court referred to the Madhya Pradesh High Court's decision in Raj Pack Well Ltd., which held that HDPE strips and tapes fall under Heading No. 39.20, sub-heading No. 3920.32. The court also noted that the Central Board of Excise and Customs issued a circular on 24th September 1992, ordering that HDPE strips and tapes not exceeding 5 mm be classified under Heading No. 39.20, in consonance with the Madhya Pradesh High Court's decision.

4. Binding Nature of Instructions Issued Under Section 37B:
The court examined whether instructions issued under Section 37B of the Central Excise Act, 1944, are binding on quasi-judicial authorities. It was held that such instructions are not binding on quasi-judicial authorities, especially the appellate authority, and assessees can question the correctness of the same before a quasi-judicial authority. The court cited several judgments, including Orient Paper Mills Ltd. v. Union of India and Genest Engineering Pvt. Limited v. Union of India, supporting this view.

5. Determination of Whether "Strips" and "Tapes" are Distinct Commodities:
The court noted that the meaning of the words "strip" and "tape" is to be construed based on the understanding of people in trade. The petitioners argued that in common parlance, HDPE/PP tapes and strips are considered different commodities. However, the court found that this issue involved disputed questions of fact, which are not suitable for determination in writ jurisdiction.

6. Jurisdiction of the High Court to Decide Disputed Questions of Fact:
The court emphasized that it is loath to decide disputed questions of fact in writ jurisdiction. Such questions require evidence to be led, sifted, and appreciated, which is the role of the concerned authorities under the Central Excise Act, 1944. The court held that the petitioners should have approached the appropriate authorities constituted under the Central Excise Act for relief.

Conclusion:
The High Court dismissed the writ petitions, holding that the petitioners ought to have approached the appropriate authorities under the Central Excise Act, 1944, for relief. The court declined to exercise writ jurisdiction under Article 226 of the Constitution of India, emphasizing that disputed questions of fact should be determined by the departmental authorities empowered under the Central Excise Act, 1944.

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