KARNATAKA ELECTRICITY BOARD Vs. ACCE MYSORE

JUDGEMENT

(1.) IN this petition for a writ of mandamus the petitioner seeks a direction against the Respondent to pass an order of adjudication pursuant to the classification list dated 1. 1. 1989 filed by it in the prescribed form. The controversy arises in the following backdrop : 1. 1. The Petitioner is a Statutory Body constituted under the Electricity Supply Act, 1948 and engaged in generation, transmission and distribution of electricity within the State of Karnataka. It has established Workshops among other places at Mandya and Bangalore in which it fabricates certain items such as 2 pin cross arms, 3 pin cross arms, 4 pin cross arms, fish plates, PCC Pole clamps, RCC Pole clamps, DP sets, Earth guard stirrups, etc. , used exclusively in the electricity transmission and distribution network established by the Board. A classification list effective from 1. 1. 1989 was filed by the petitioner before the Respondent-Assistant Commissioner collector (sic) of Central Excise, Mysore. The list carried the following significant remark. "this list is filed subject to CEGATS decision in our appeal filed against the order of the Central excise, Bangalore. " according to the petitioner the remark extracted above, was intended to convey that the items mentioned in the list did not involve any manufacturing process and were therefore not excisable. It was also intended to convey that the dispute relating to the excisability of the items be kept alive.

(2.) BY his communication dated 31st of January, 1989 the Respondent approved the classification list without recording any reason whatsoever for his decision and without the issue of any show cause notice to the petitioner. On receipt of the said communication, the petitioner requested the Respondent to pass a speaking order to enable them to file an appeal against the same insofar as it would hold the items to be excisable. This request was turned down by the respondent, by his letter dated 30th of November, 1989 ANNEXURE-'d' to the writ petition. He stuck to his stand in his communication dated 22nd of December, 1989 reliance by the petitioner upon a decision of this Court in W. P. No. 3438/89, notwithstanding. Aggrieved the petitioner has filed the present writ petition, seeking a mandamus as already indicated earlier.

(3.) LEARNED Counsel for the petitioner submitted on the authority of the decision mentioned above, that once a list was filed before the Respondent he was bound in terms of Rule 173-B of central Excise Rules, 1944 to pass a speaking order after an enquiry into the matter. The obligation to pass such an order argued the Counsel, arose because of the petitioner's clear stand taken in the list filed by it, as also in a similar list filed earlier that the goods fabricated in the workshops were not excisable as no manufacturing activity was involved in such fabrication. Inasmuch as the Respondent overlooked the requirements of Rule 173-B and declined to pass a speaking order, contended the Counsel, he committed an error which was palpable on the face of record. He further contended that the approval of the list, without the disclosure of the reasons, for such approval prevented the petitioner from filing an appeal against the adjudication and claiming refund of the amount of duty paid on the said items. A mandamus was according to the learned Counsel pre-eminently justified in the facts and circumstances of the case.