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TMI Blog1995 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision of a Division Bench of this Court, the learned single Judge has over-ruled the preliminary objection and has gone into the merits of the matter and dismissed the writ petitions holding that the tyre cord fabric in question falls under the Heading 59.05 of Chapter 59 of the Central Excise Tariff Act as found in page 502 of the Central Excise Tariff of India 1986-87, IV Edition published by the Central Law Office, New Delhi. Aggrieved by the common order, the petitioner in the writ petitions has come up in appeals. 3.Learned Senior Counsel Shri Goving Swaminathan appearing for the appellant-petitioner contended that the Collector and the Assistant Collector of Central Excise had no jurisdiction to adjudicate that the tyre cord fabric in question fell under Heading 59.05, when the excise duty had already been paid on the basis that the tyre cord fabric in question fall under Heading No. 59.02, that the whole thing has been considered ignoring the law bearing on the point and that, therefore, it is not necessary for the appellant to avail the remedy of appeal under the Central Excises and Salt Act, 1944. In support of the aforesaid submissions, the learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows : Heading No. Sub-Heading No. Description of goods Rate of duty Basic Addl. ********************* 59.02 Tyre Cord fabric of high tenacity yarn of polyamides polyesters or viscose rayon 5902.10 - of polyamides Nil Rs. 4 per Kilogram 5902.20 - of polyesters Nil Rs. 4 per Kilograms 5902.30 - Of viscose rayon Nil Rs. 2 per Kilogram ********* 59.05 Rubberised textile fabrics other than those of heading No. 59.02 5905.10 -Of Cotton 8% 5% 5905.20 -Of man-made textile materials 8% 10% plus Rs. 2 per Kilogram square metre Thus from the aforesaid extract, it is clear that 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 depending upon whether it is polyamides or polyesters or visc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficult to accept the contention of the learned senior counsel for the appellant that it is not at all open to the Central Excise Officer to determine whether a particular produce falls under the Heading 59.02 or 59.05. Without such power, the adjudicatory authority will not be able to discharge his functions effectively inasmuch as if no such power is given to the adjudicatory authority, whatever the producer chooses on his own option to classify the produce either falling under the Heading 59.02 or 50.05 would be final. This is not the position in law. It is the adjudicatory authority, namely the Central Excise Officer, is entitled to determine as to whether the particular goods falls under the Heading 59.02 or 59.05. The contention of the learned counsel for the appellant that the adjudicatory authority is not right in holding that the tyre cord fabric in question falls under the Heading 59.05 or 59.02 and such decision of the adjudicatory authority is illegal and not in accordance with the provisions contained in the Act is not acceptable. 8.As against the adjudication made under Section 11-A of the Act, there is a right of appeal provided under Sections 35 and 35B of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the Supreme Court has made it clear that 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, or where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore be treated, as void or non-est and that in all other cases, courts should not entertain petitions under Article 226. In L. Hirday Narain's case (supra), it has been held that in a case where the remedy that is available is only a revision, it is well settled that revision is not an adequate remedy and therefore, even though an alternative remedy of revision is available, the High Court can exercise jurisdiction under Article 226 of the Constitution, subject to the facts of each case. In Madura Coats Ltd.'s case [1994 (71) E.L.T. 347] in which the order of the Collector was challenged before the Supreme Court, it was held that there was no reason as to why the petitioner should not avail the alternative remedy of appeal available to it. The situation of the case that was decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Writ Petition Nos. 7793 of 1992 and 7585 of 1993 and decline to exercise jurisdiction under Article 226 of the Constitution of India and dismiss the writ petitions. We keep open all the contentions having a bearing on the merits of the cases. We further direct that if the appellant files an appeal before the Appellate Tribunal against the order dated 2-4-1992 in C.No. V/59.05/15/47/90-Adjun. passed by the Collector of Central Excise Madurai-2, within a period of thirty (30) days from today, in accordance with the provisions contained in the Central Excises and Salt Act, the Appellate Tribunal shall decide the appeal on merits and in accordance with law, without going into the question of limitation. We also further direct the Collector (Appeals) in the event the appellant files an appeal against the order passed by the Assistant Collector of Central Excise, Madurai, dated 26-6-1992 in C. No. V/59/30/14/91 within a period of thirty (30) days from today, in accordance with the provisions contained in the Central Excises and Salt Act, to decide the appeal on merits and in accordance with law, without going into the question of limitation. We also further make it clear that our dir ..... 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