NAVEEN TEXTILE AGENCIES THROUGH SRI NAVEEN MALHOTRA, PROPRIETOR Vs. CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL AND COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BY means of the present writ petition under Article 226 of the Constitution of India, petitioner seeks the following relief.

(2.) BRIEF facts of the case -giving rise to the present writ petition are that the petitioner is engaged in the manufacture of tents and parts thereof falling under Chapter 6306 of the Central Excise Tariff Apt, 1985 and duly registered under the Central Excise, Department. The Central Preventive Officers of the Central Excise Kanpur visited the factory of the petitioner on 28.4.1998 and on physical verification of the stock detected a shortage of 40 tents private MK -3 complete and 1607 tents arctic small complete against the recorded balance as on 28.4.1998 in the prescribed records. For the aforesaid clandestine removal of the goods, the petitioner deposited the duty of Rs. 3,78,487/ -. The officers also noticed from the resumed records and two letters dated 8.4.1998 and 27.4.1998 that certain damaged goods were replaced without payment of Central Excise duty of Rs. 2, 999.68, which according to the petitioner was also paid without any dispute. However a demand of Rs. 4,84,998/ - was raised on the basis of GRs resumed from the possession of one Shri Akhilesh Shukla a Transport Commissioner Agent. The petitioner tried to co -relate the said GRs with the invoices issued by it, but the co -relation was not accepted. A further demand of Rs. 2,14,478.00 was raised on the basis of the note -book resumed from the gate keeper and the explanation given by the petitioner was rejected. In this way, total demand of Rs. 10, 90,914.36 was raised and penalty of the equal amount of Rs. 10, 80,914.36 was also levied under Section 11AC of the Central Excise Act, 1944 (hereinafter after referred to as "Excise Act") and the interest has also been demanded under Section 11AB of the Excise Act. Being aggrieved by the order of the Commissioner, Central Excise, the petitioner filed appeal before the Tribunal. Tribunal by the impugned order confirmed the demand towards duty but reduced the penalty amount to Rs. 2.5 lacs. Challenging the aforesaid order, the present writ petition has been filed.

(3.) LEARNED Standing Counsel submitted that against the impugned order of the Tribunal, petitioner had an alternative remedy by way of reference under Section 35H of the Excise Act and, therefore, the writ petition is not maintainable. He submitted that the relief, which the petitioner is seeking in the present petition, can also be availed in the reference, but instead of filing reference application, present writ petition has been filed, which is not maintainable and liable to be dismissed.