9911796707
TMI Blog1995 (7) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... es on business in the manufacture and sale of paper and paper-board coming within the notification issued under Rule 173A of the Central Excise Rules at its plants at Brajarajnagar in Orissa and Amalai in Madhya Pradesh. The petitioner challenges the orders of provisional assessments for the period from April, 1994 to September, 1994, vide Annexure-1 in the writ petition, passed by opposite party No. 1, Superintendent, Central Excise, Jharsuguda, claiming, inter alia, that the said provisional assessments were without jurisdiction, contrary to the procedure laid down in the Central Excise Act (for short "the Act") and the same are alleged to be arbitrary because of ignoring the earlier determination made on similar matters in earlier adjudication. 3.It is placed on record that the Superintendent of Central Excise, opposite party No. 1, is one of the proper officers for the purpose of administration of central excise in relation to the matters referred to in the petition and it is claimed that the said opposite party No. 1 is not a Central Excise officer under Section 2(b) of the Act and has no power to demand a tax under Section 11A of the Act of levy or raise demand of tax. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n decided since 1987. 5.The petitioners allege that the Assistant Collector, opposite party No. 2 approved the price-lists up to 15-2-1987 by his orders dated 31-12-1986 and 12-1-1987 and allowed the trade discount. No provision has been made. Basing on such determination, the petitioner has been adjusting its prices under Section 4 of the Act accordingly. The facts reveal that on 15-2-1987 when the petitioner filed the price-lists claiming not only trade discount but other deductions like loading charges, packing charges, cash discount/interest element, sub-standard rebate/retree rebate, reel rebate, the Assistant Collector by his order dated 30-6-1993 only allowed trade discount for the price-lists from 16-2-1987 to 25-3-1992 and disallowed the other deductions. In the petitioners' appeal before the Collector (Appeals), Calcutta by Order No. 220/BBSR/94, dated 29-4-1994, retree rebate, real rebate, cutting rebate, cash discount/interest element were allowed but the secondary packing charges and loading charges were disallowed. The revenue's appeals before the CEGAT are still pending. Similarly, the price-lists filed for the period from April 1992 to 31st March, 1994 claiming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by quashing such arbitrary, irregular and illegal orders. In support of such contention, he has referred to a good number of reported decisions to draw the attention of the Court. He has further developed his argument by referring to the decision in 1980 (6) E.L.T. 274 (I.B.M. World Trade Corporation v. Union of India). This decision relates to precedent, revisionary order and the binding effect and the ratio of the decision is : "Once the Government of India had given a finding on a contention raised before it, it is binding upon the subordinate authorities in subsequent proceedings unless some other material is brought to their notice to take a contrary view." More important is the discussion in Paras 10 and 11 of the said decision. 10.In 1990 (45) E.L.T. 24 (Trident Television Private Limited v. Collector of Customs), the learned Single Judge of Calcutta High Court has observed : "Alternative remedy not a complete bar to maintainability of writ application - circumstances in which the High Court may interfere - Petition admissible when adjudication order illegal, manifestly arbitrary, unreasonable and delay would cause irrepairable loss and prejudice to the petitioner." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. 15.There is also reference to the decision reported in the self-same report at page 711 and in [1994] 46 ECC 129 (SC) = 1991 (55) E.L.T. 433 (SC) (Union of India and Others v. Kamlakshi Finance Corporation Ltd.). There the Supreme Court held the powers of Assistant Collector, Central Excise vis-a-vis matters disposed of by Assistant Collector by by-passing two appellate orders in regard to the same issue. It was held that High Court criticising such conduct of Assistant Collector causing harassment to assessee was justified. Emphasis has been made that there is need to follow judicial discipline and to give effect to orders of higher appellate authorities. 16.Our attention has also been drawn to the provisions of the Central Excises and Salt Act, 1944, Central Excise Rules, 1944 and the Central Excise Tariff Act, 1985. 17.Strong argument has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell conceded before us that the Act and the Rules enable the statutory authorities to make provisional assessments. Even against such provisional assessments an aggrieved party can prefer appeals. In the present case, the petitioners' main grievance is with regard to filing of the price-lists and considering the scope of granting relief by admissible deductions. Previously certain materials were considered, certain factual aspects were also considered and part relief was granted. The ratio decidendi of the earlier decision is not in dispute. For each and every period there are certain salient features and there are factual disputes. It is not for the writ court to consider the factual details and to consider the allegations and counter-allegations, or grievances and counter-grievances. If the rights of the parties are affected by per se illegal step, the petitioners may well come to the writ court seeking remedy. But in the instant case, we find that in order to avoid delay and for expeditious relief the petitioners have filed the writ application. When admittedly statute provides an alternative forum, filing an appeal against the orders in question would not be prudent on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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