9911796707
TMI Blog1993 (2) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner, a private limited company, is manufacturing and selling various kinds of yarn. On 10-6-1986, the officials of the first respondent visited the petitioner's business premises and inspected the factory. After such inspection, the officials of the first respondent came to the conclusion that there was a shortage of 245.95 kgs. of yarn in respect of 34 counts yarn and an excess of 88.70 kgs. of yarn in respect of 40 counts yarn. On the basis of the above conclusion, a sum of Rs. 554.65 p. was levied as excise duty for excess and shortage of yarn noticed on that date. On the basis of the shortage found on the date of inspection and also on the basis of a statement given by the Manager of the petitioner's company, the first responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, while admitting the facts as narrated above, however, submitted that the failure to invoke the alternative remedy is not always fatal to move this Court under Article 226 of the Constitution of India if the petitioner is able to establish the error apparent in the order/s impugned. In support of his submission, he relied on a Division Bench judgment of this Court in K.S. Shivji Co. v. joint Commercial Tax Officer, Esplanade Division II, Madras reported in 16 S.T.C. 769. He also relied on the following decisions:- Guita and Company v. Sales Tax Officer, Etawah reported in 13 S.T.C. 591, Jhagru Shaw and Others v. Commissioner of Commercial Taxes and Others reported in 17 S.T.C. 130 and M/s. Jammu Metal Rolling Mills v. The Assessing Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d referred to the practice that was adopted in the matter of weighment by the applicant firm and also the fact that there was no retraction from the statement of the Manager. The Tribunal had further taken into consideration other evidence in the shape of advertisement of the applicant declaring the weight of the packing material as 3.4 kgs. The Tribunal had further confirmed that there was ground for sustaining the charge of suppression by the applicant by observing "The plea of the learned Consultant that the Departmental Officers had been regularly visiting the appellant's premises and should be presumed to be in the know of the things cannot be accepted, because the plea has not been probabilised much less established as per law." In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 36 of the Customs and Excise Act. After the revision had been filed by the petitioner, the Central Excise Act was amended. By this amendment, Section 35-G was inserted under which the Tribunal could send a reference to the High Court if it was satisfied that the case involved question of law. Before the Tribunal, the petitioner raised a number of grounds which are enumerated in paragraph 10 of the writ petition. The application was rejected on 4th April, 1986. Thereafter, instead of filing an application under sub-section (3) of Section 350 of the Central Excises and Salt Act, the petitioner filed the present writ petition and obtained a stay order. The petitioner's counsel was informed on the last occasion that the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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