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TMI Blog1991 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... bide by the orders passed by the Collector, Central Excise, Delhi, a superior authority of the respondent No. 2 and to make assessment in accordance with the direction contained in the order directing the respondents to clear its production under sub-head 2502.20 till the disposal of the writ petition, (viii) grant any other appropriate relief which the petitioner may be found entitled to in the fact and circumstances of the case, and (ix) allow the cost of the writ petition to the petitioner." 2. The averments made in the petition may be summarised thus. The petitioner Company manufactures white rapid hardening cement at Gotan (Nagaur) since November, 1990. So far, white rapid hardening cement was being classified under sub-head 2502.90 of the Schedule-I of the Central Excise Tariff Act, 1985 (hereinafter to be called 'the 1985 Act'). The excise duty was being paid at the rate of 40% ad valorem. On realising the mistake, the manufacturers namely, J.K. Cement Works and Indian Rayon Industries, filed revised classification lists putting white rapid hardening cement under sub-head 2502.20 and claiming payment of excise duty at the rate of 215/- per metric ton (P.M.T.). The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944 (hereinafter referred to as 'the 1944 Act') by way of appeal, it is the consistent view of this Court that such matters should be left for the consideration and decision of the officer/authority under the 1944 Act, no cause of action has arisen in favour of the petitioner and the writ petition involves many disputed and complicated questions of fact. It has also been averred that the petitioner should have submitted its application Annexure-1 through the concerned sector/range office and not directly to him (respondent No. 1), as a result thereof, comments have been sought from the Superintendent of the concerned Range, white cement manufactured by J.K. Cement Works has been held to be rapid hardening cement on the basis of the reports of the various tests regarding its physical properties and chemical composition, no such report has been filed by the petitioner before him (respondent No. 1), it has also not been established that the white cement manufactured by the petitioner Company is similar to the white cement manufactured by the J.K. Cement Works, the petitioner Company is registered with Bureau of Standard Institution (B.S.I.) under the head 8042 of 1978 relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 5207/91 M/s. Indian Rayon Industries v. Union of India has been admitted, it has not so far been admitted, this writ petition (No. 5207/91) and the present writ petition are not similar, the petitioner has been asked to substantiate its application (Annexure-1) by producing material but till 27th October, 1991 no material has been produced, there is no question of violation of Article 14 of the Constitution of India as the petitioner has failed to prove that the cement produced by it is similar to the cement produced by the J.K. Cement Works, it is not clear from the chart/statement (Annexure-7) as to who has prepared it and it is also not correct, it is clear from the petitioner's letter dated 5-9-1991, paper No. 49/4, that it wants to produce one more product i.e., rapid hardening portland cement showing that the petitioner Company is not still producing rapid hardening cement and the petitioner has not produced any of these documents before him which have been produced in this case before the Court. 6. Learned counsel for the respondents raised various preliminary objections against the maintainability of the writ petition. Firstly, he contended that the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an incorrect statement to this effect has been made. In the rejoinder, the petitioner has averred that no incorrect statement has been made and a copy of the order dated 7-10-1991 has been enclosed with the petitioner's writ petition and it is question of interpretation of the said order dated 7-10-1991. The letter dated 7-10-1991 (Annexure-2) coupled with the reply of the respondent No. 1 leaves no manner of doubt that the matter in dispute is still pending before the respondent No. 1 and he has not refused to revise the classification list Annexure-1. The reported decisions relied upon by the learned counsel for the respondents fully support him on this point. As such the writ petition is premature. 8. The third preliminary objection is that the petitioner had an alternate remedy by way of filing an appeal under Section 35B of the 1944 Act if the order Annexure-2 amounts to refusal to revise the classification list. This preliminary objection has also great force. It is not the case of the petitioner that the respondent No. 1 has no jurisdiction to entertain its application Annexure-1 for revising the classification list. When he has jurisdiction to entertain and decide the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year, if there is an alternative remedy available to the applicant under the sales-tax law and it would not be a valid argument for the applicant to say that a reference on a similar point in respect of an earlier assessment year is pending before the High Court. That is a situation which is bound to arise in a number of cases and many assessments would be held up, resulting in great detriment to the revenue, if the High Court were to start entertaining writ petitions merely on the ground that a reference on the same question is pending in respect of an earlier assessment year. The High Court should ordinarily in such cases, ask the applicant to pursue his remedy under the statute and come up before it by way of a reference." Obviously, these observations are against the petitioner. In AIR 1956 Allahabad 147, Lokesh Chandra v. Commissioner, Rohilkhand Division, Bareilly Others, the appeal was pending for long and it was not being decided. In AIR 1957 Calcutta 702, M/s. Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner Others, it has been observed that the question depends on the facts and circumstances of each case and it was a case under the Employees P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.B. Civil Writ petition No. 626/86 decided on 19-7-1986), D.B. Civil Special Appeal No. 254/86Aditya Mills Ltd. v. Union of India, decided on 19-9-1986; National Engineering Industry v. Union of India (D.B. Civil Special Appeal No. 1/87) decided on 30-6-1987; Central India Machine Manufacturing Company Ltd, v. Union of India Ors. (D.B. Civil Writ Petition No. 1121/82, decided on 27-10-1990) and after a detailed consideration, it has been held that there is no warrant for exercise of extraordinary jurisdiction of this court at the stage of show cause notice or where the remedy of appeal or revision is available to the party concerned." 12. The fourth preliminary objection was that two parallel remedies cannot be allowed to be pursued. This objection has also substance. Para No. 2 of the petitioner's application Annexure-1 runs as under: "We are accordingly submitting herewith a revised classification list (under Rule 173B) classifying our product rapid hardening cement (white) under sub-head 2502.20 assessable to duty at the rate of Rs. 215/- P.M.T. (plus 10 per cent S.E.D.) for your kind approval." Similar relief has been claimed in the writ petition vide prayer No. ii, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturers of white cement, two manufacturers (J.K. Cement Works Indian Rayon Industries) are being assessed under sub-head 2502.20 and the remaining one manufacturer, namely, the petitioner is being assessed under sub-head 2502.90. 17. Para No. 2 of the application of the petitioner dated 4-11-1991, paper No. A12/1-4, runs as under : "2. That the petitioner's factory is practically taking no production for last more than a fortnight and in future also it will not be possible for the petitioner to take production in the factory for the reason of pendency of the writ petition before this Hon'ble Court. There are more than 500 workers daily working in the factory and they have been rendered idle including the administrative and management staff. The reason for not taking production is obvious, as the other two factories namely, J.K. White Cement Factory and the Biria White Cement Factory located in the same vicinity have been paying excise duty at the fixed rate of Rs. 215/- per metric ton under sub-head 2502.20 of the Central Excise Tariff Act, 1985, one under the order of the Collector, Central Excise, Delhi and the other one under the order of this Hon'ble Court dated 9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all the necessary documents and furnished full information for the assessment of duty, the proper officer deems it necessary to make further enquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal) for assessing the duty; the proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or inquiry, be assessed provisionally at such rate or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed." 19. Rule 173B(2A) of the Rules states: "(2A) All clearances shall, subject to the provisions of rule 173CC, be made only after the approval of the list by the proper officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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