WINDER FOODS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners challenge the constitutional validity of the provisions of section 11B of the Central Excise and Salt Act, 1994 as it was in force on the date of filing of the petition i.e. July 10, 1989. The petitioners also pray that the order passed by the Assistant Collector of Central Excise and Customs, Division V, Vadodara rejecting the claim of refund preferred by the petitioner in respect of differential rate of excise duty paid on cream biscuits due to alleged wrong classification during the period commencing from 1982 to 1986 be quashed and set aside the respondents be directed to refund an amount of Rs. 13,43,000/- (Rupees thirteen lakhs and forty three thousand only) to the petitioners.

(2.) . Today when the petition came up for hearing, it is stated at the Bar that the question as regards the constitutional validity of the provisions of section 11 -B of the Act has been concluded by a judgment of this court in the case of Wigman Electrical Engineering Industries vs. Union of India, reported in 1991 (2)GLR page 1081. In view of this position, the learned counsel for the petitioners does not press the petition as far as the challenge to the constitutional validity of the provisions, of section 11-B of the Act is concerned. As far as the challenge to the order dated March 29, 1989, at annexure 'A' passed by the Assistant Collector of Central Excise and Customs, Division V, Vadodara is concerned, we do not think it proper to entertain the petition and decide the same on merits. It is an undisputed position that against the impugned order, appeal is maintainable before the Collector of Central Excise (Appeals), Ahmedabad at Bombay. In view of this position, the petition is disposed of with the following directions:

(3.) . In the result, the petition stands disposed of as having not been pressed as regards the challenge to the constitutional validity of the provisions of section 11-B of the Central Excise and Salt Act, 1944 is concerned. As far as the challenge to order dated March 29, 1989 produced at annexure 'A' is concerned, the learned counsel for the petitioners requests that he be permitted to file appeal before the concerned appellate authority and some time may be granted so as to enable the petitioners to file appeal. He further submits that if such direction is given, the petitioner is willing to withdraw this petition and avail of the alternative remedy of appeal as provided under the statute. In view of this position, it is directed that if the petitioners prefer appeal before the concerned appellate authority latest by February, 6 1995 the appellate authority will consider the appeal as having been filed within the prescribed period of limitation and shall not reject the same on the ground of limitaition.