BINNY LIMITED Vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) For the period from 1st January, 1970 to 31st December, 1970 the petitioner, a reputed manufacturer of textiles, manufactured a textile item called "X-40, dedsuti". On that manufactured article, the petitioner claimed that it was liable to pay excise duty under tariff item No. 19I(2) of the Central Excises and Salt Act of 1944 (hereinafter referred to as the Act) and accordingly paid the necessary excise duty thereon. On 26th June, 1971 the Superintendent of Central Excise, Bangalore (hereinafter referred to as the Superintendent) issued a show cause notice (exhibit B) to the petitioner inter alia claiming that the Article "X-40, dedsuti" should have been levied with excise duty under tariff item No. 19I(1) of the Act and the difference of excise duty amounting to Rs. 97.800,39 should be paid for the aforesaid period. In response to the said show cause notice, the petitioner filed its objections inter alia contending that the levy already made and collected was in conformity with the circular instructions issued by the Central Board of Excise and Customs (hereinafter referred to as the Board) in its circular instructions No. 18/69 dated 18th June, 1969 (exhibit A) and, therefore, it was not liable to pay the difference of duty demanded on the manufactured article. Before the original authority, the petitioner urged that the samples collected had no relevance to the manufactured article and that the matter should be decided on an appraisal of the proper sample relevant to the manufactured article. Unfortunately, the Assistant Collector of Central Excise, I.D.O., Bangalore III Division, Bangalore (hereinafter referred to as the Assistant Collector) the original authority, without considering the true nature of the objections raised by the petitioner, and the circular instructions issued by the Board, by his Order No. C.V/19/11/8/71 dated 12th July, 1972 (exhibit F), overruled the objections and confirmed his show cause notice. Against the said order of the Assistant Collector, the petitioner filed an appeal in Appeal No. 2284/72(B) before the Appellate Collector of Central Excise, Madras (hereinafter referred to as the Collector), who by his order dated 5th August, 1975 (exhibit K) dismissed the same and affirmed the order of the Assistant Collector. Against the said orders of the Collector and the Assistant Collector, the petitioner presented a revision petition on 17th October, 1975 (exhibit L) before the Government of India, which was then exercising the revisional jurisdiction under the Act. As the revisional authority did not take up the revision petition for disposal within a reasonable despatch of time, the petitioner presented this writ petition under Article 226 of the Constitution on 16th November, 1976 challenging the orders of the Collector and the Assistant Collector. Before this Court issued rule nisi in the case, the petitioner withdrew the revision petition presented before the Government and urged for the determination of the case on merits. Accepting the said submission, this Court on 19th August, 1977 has issued rule nisi.

(2.) Sri K.P. Jagadeesan, learned Counsel for the petitioner, contends that the orders made by the Collector and the Assistant Collector determining the liability under tariff item No. 19 I(1) of the Act are based on "no evidence" and are manifestly illegal. Elaborating his contention Sri Jagadeesan has maintained that the evidence, if any, on which the authorities have recorded their findings, viz., (i) samples of bleached variety and (ii) grey warehouse register were totally irrelevant and the relevant evidence, if any, available had not been taken into consideration and decided.

(3.) Sri. K. Shivashankar Bbat, learned Central Government Senior Standing Counsel, appearing for the respondents, in justifying the impugned orders contends that when the petitioner had very rightly availed the legal remedy of revision before the Government, but inadvisedly withdrew the same (he) cannot be permitted to challenge the impugned orders under Article 226 of the Constitution.