DARSHAN HOSIERY WORKS Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners in all these cases are engaged in the business of manufacturing under-garments and body-supporting garments like Banians (upper-underwears) and Jangias (lower-underwears). They have been required by the central excise authorities to take out licence for manufacturing Banias and Jangias. They are challenging in this group of petitions the notices issued by the central excise authori- ties to them to take out the licence.

(2.) The petitioners in all these petitions therefore contend that Banias and Jangias are not excisable articles at all and that there- fore there is no obligation on them to take out the licence.

(3.) Before we examine the contention raised by Mr. Bhatt on behalf of the petitioners it is necessary to deal with the preliminary objection which Mr. Vakil has raised to the maintainability of these petitions. According to him these petitions are not maintainable because the peti- tioners have been merely directed to take out licence under the Central Excises and Salt Act 1944 According to him. such a direction does not give rise to a cause-of-action which can maintain these petitions. Secondly he has argued that appeal against such a notice lies to the Collector Central Excise under sec. 35 of the Central Excises and Salt Act 1944 It would have been better if the petitioners had exhausted the remedy of appeal. But merely because they have not exhausted the remedy of challenging the impugned notice in appeal under sec. 35 it cannot be said that these petitions are not maintainable because failure or omission on the part of the petitioners to take out the licence leads to prosecu- tion against them. Secondly if these articles which they have been manufacturing are not excisable articles then there is no obligation whatsoever on them to take out the licence. If therefore a notice has been served upon a petitioner to do a certain thing or to desist from doing a certain thing and if that notice has no foundation whatsoever in law under which it purports to have been issued then such a notice can be challenged in a petition under Art. 226 of the Constitution because failure or omission to comply with such a notice results into penal consequences. The preliminary objection raised by Mr. Vakil the- refore fails and is rejected.