DCW LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in all the cases is the same. The petitioner-company manufactures caustic soda by electrolysis of sodium chloride brine by BASF type high amperage mercury cells. During this process in the primary cell a mixture of gases consisting of hydrogen, oxygen, nitrogen, water vapour and a substantial percentage of chlorine content are produced. This mixture of gases is fed through pipe line and diverted into two branches. One branch goes to the liquid chlorine plant, with which we are not concerned. The other branch is taken to a furnace where it is burnt with hydrogen resulting in hydrochloric acid fumes which are absorbed in water to make commercial grade hydrochloric acid. The bone of contention between the parties is whether the mixture of gases liberated in the primary and taken through pipe lines for manufacture of hydrochloric acid, otherwise called wet chlorine, is goods within the meaning of Section 3 of Central Excises and Salt Act, 1944 and whether it is classifiable under sub-heading 2801.10 of the Central Excise Tariff Act, 1985. The subsidiary question is whether in that form, it is marketable even though the petitioner does not actually market it and captively consumes the same for the manufacture of hydrochloric acid. W.P. 8647 of 1988 concerns the order of the Assistant Collector of Central Excise dated 25.4.1988 imposing a duty of Rs. 8,00,839.80 for the total quantity of wet chlorine manufactured and removed without payment of duty for the period from 1.5.1987 to 31.10.1987. W.P. No. 12177 of 1988 is against a similar order dated 8.7.1988 for the period from 1.11.1987 to 30.4.1988 imposing a duty of Rs. 8,41,204.44. W.P. No. 13838 of 1988 is against a show-cause notice proposing to levy Rs. 8,20,421.78 for the period from 1.5.1988 till 30.9.1988. It is not disputed that the petitioner-company has an alternative remedy of filing an appeal under Section 35-A to the Collector of Central Excise (Appeals). Similarly in W.P. No. 13838 of 1988, the petitioner-company can submit its explanation and if an order is passed against it, an appeal can be filed.

(2.) Let me at the outset deal with the preliminary objection of Mr. A.S. Venkatachala Moorthy, counsel for the respondents. The submission is that this Court should not interfere with the impugned orders on the short ground of availability of adequate alternative remedy. In support of the contention, the following judgments are relied upon: (1) Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. (2) Titaghur Paper Mills Co. Ltd., v. Slate of Orissa and S. Jagadeesan v. Ayya Nadar Janaki Ammal College and Anr. . Reliance is also placed upon the unreported judgments in Z. Raja Beedi Factory v. The Collector of Central Excise, Madras - 34 (W.A. No. 257 of 1988 dated 2.3.1988), W.A. No. 1730 of 1987 dated 25.10.1988 and Southern Engineering Industries, Coimbatore v. The Superintendent of Central Excise, Coimbatore I Division, Coimbatore (W.A. Nos. 865 to 875 of 1989 dated 30.10.1989). The principles are too well known. For more than one reason Courts should not take upon the duty of correcting every illegal order especially when it involves assessment of factual material or technical questions with which the prescribed authorities are more conversant and have expert knowledge. Equally, there is one other well-accepted principle that when a writ petition has been admitted and is pending for some time, it will be improper to drive the party to an alternative remedy. Having all these principles in mind, it is for the Court to exercise its discretion in a judicious manner with the interest of both parties in mind. No doubt, the Division Bench in W.A. Nos. 865 to 875 of 1989 (cited supra) has considered this very aspect and still directed the party to invoke the alternative remedy. I have myself considered this aspect in Madurai Coats Ltd. v. Asst. Collector of C.E. . There is also the judgment of the Supreme Court in Raj Soni v. AIR Officer Incharge Admn. . I, therefore, feel, it would be more appropriate to decide the issue after examining the merits of the case especially because the writ petitions are pending from 1988. If, while examining the merits of the case, it is felt that it would be more appropriate to relegate the petitioners to the remedy of appeal, it can always be done.

(3.) The impugned order proceeds as follows:--