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TMI Blog1996 (11) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, common questions of law arise for consideration of similar facts. Hence they are being disposed of by this common order. 3.In my view it would be enough to briefly state the facts of the case in one writ petition and the case as pleaded by the respondent in the counter affidavit. 4.It is stated that the petitioner company is one of the leading and largest textile company in India employing about 20,000 persons with a current annual turnover of Rs. 500 crores. The goods record of the petitioner company in terms of durability and quality of textile fabrics manufactured by it has created good overseas market in the foreign countries. For decades it has maintained the consistent record as the leading Exporter of textiles. 5.The cotton canvass and Duck fabrics were initially classified and cleared under the Tariff Item 19-I(i) of the erstwhile First Schedule to the Central Excises and Salt Act, 1944. After the Central Excise Tariff Act, 1985 (hereinafter referred to as `the Act') came into force from 28-2-1986, the petitioner filed classification lists classifying the cotton canvass/duck fabrics under the Chapter Headings 52.05/52.06 which were corresponding to Tariff Item 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit filed and the affidavits filed in support of the petitions for vacating the interim stay, the respondents have given the details, opposing the claim of the petitioner, and have sought for dismissal of the writ petition. Besides denying the claim of the petitioners, the respondents have taken a stand that the petitioners have an alternative remedy of filing appeal against the impugned orders, and without exhausting the alternative remedy the petitioners have approached this Court and hence the writ petitions may not be entertained. It is further stated that the classification issue being a pure question of fact this Court need not go into the facts which has to be done by the authorities, and the Courts have taken the view that in the classification matters the Court should not interfere since it involves pure question of fact. 10.Shri S. Govind Swaminathan, learned Senior Counsel for the petitioners submitted that the Central Board of Excise and Customs has issued Order No. 10/93, dated 5-11-1993 under Section 37B, clearly stating that grey cotton canvass, cotton ducks, cotton tyre cord fabrics and cotton belting fabrics shall henceforth be classified under the Heading No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Act, there is a right of appeal provided under Sections 35 and 35B of the Act. If the order is passed by the Assistant Collector of Central Excise, the appeal would lie to the Collector (Appeals) under Section 35 of the Act and if the order is passed by the Collector of Central Excise, the appeal would lie to the Appellate Tribunal under Section 35B of the Act. The scope of appeals under both the provisions is the same, as both of them lie on facts and law. It may also be pointed out here that as against the order passed by the Appellate Tribunal, appeal lies to the Supreme Court under certain circumstances and no appeal is provided to the High Court. If it is necessary, the Tribunal can make a reference on a question of law to the High Court under Section 35G. Further, along with the appeal, as per Section 35F of the Act, the appellant is required to deposit the duty as well as penalty. If the deposit of duty and penalty is going to cause undue hardship to the appellant, it is open to the Collector (Appeals) or the Appellate Tribunal to consider such question and decide whether in the facts and circumstances of each case, depositing of duty and penalty causes undue hardship to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy of appeal available to it. The situation of the case that was decided by the Supreme Court and the case which we are now called upon to decide is the same. In addition to this, a Division Bench of this Court in Indian Steel Rolling Mills case [1994 (71) E.L.T. 350] (supra) has held as follows :- `When the appeal lies on facts and law and the Appellate Authority is also entitled to take into account the subsequent events that take place during the pendency of or subsequent to the order challenged in the appeal, we are of the view that the alternative remedy of appeal cannot at all be considered to be either inadequate or inefficacious. In fact, the Appellate Tribunal has been specifically created in order to ensure that such matters are specifically dealt with and there is speedy and effective disposal of such matters, therefore it would be in the interest of the appellant to avail the remedy of appeal'. In Madras Electro Castings' case [1994 (71) E.L.T. 646] (supra), a Division Bench of this Court has also taken the same view. The decision in the case of "Swasthi Rubber Products" [1995 (59) ECR 31] (supra), does not deal with the question of alternative remedy. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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