HIRALAL PANACHAND SHAH Vs. N L MEHTA

JUDGEMENT

(1.) THE Petitioner in this case is a tobacco merchant. He is a member of the Indian Tobacco Merchants Association Limited. He owns a ware house and holds the requisite licences under the Central Excise and Salt Act, 1944, and the Centra] Excise Rules, 1944 in connection with the said warehouse. On 9-6-1956, the petitioner submitted to the Range Officer, Central Tobacco Warehouse, an application in Form A. R. 1 for the clearance of one bale of red chopadia whole leaf tobacco from the said warehouse. On 12-6-1956 he made a similar application in respect of another such bale. On 13-6-1956 he submitted a third application in respect of four similar bales. The Range. Officer calculated the rate of duty leviable in respect of the goods mentioned in each of the said applications at 6 annas per lb. On 26-6-1956 the petitioner attended the office of the Central Excise, Central Tobacco Warehouse, Bombay, for getting the said applications countersigned for the payment of the duty calculated as aforesaid. In the mean time, on 16-6-1956, a Notification had been issued by the Collector of Central Excise, Bombay, the effect of which was that the exemption of duty in excess of annas 6 per lb. which was previously available ceased to be available in respect of the said goods and a duty of annas 14 per lb. became payable in respect of the said goods. The Inspector of the Central Excise thereupon made an endorsement on each of the aforesaid applications to the following effect:

(2.) IN order to appreciate the contentions of the petitioner it is necessary to refer to some of the pro visions of the Central Excises and Salt Act, 1944, and the Central Excise Rules, 1944. Section 3 of the said Act provides as under:

(3.) MR. M. J. C. Mistry, who appears for the Respondents, contended that if that was the case of the petitioner, then the petitioner had no right to come to Court by way of a petition for a writ if the officers concerned had wrongly considered the tobacco in question as falling under sub-item (5) instead of sub-item (6 ). He contended that it was a question of fact whether a particular type of tobacco fell under sub-item (5) or sub-item (6), and that the dispute in connection therewith could not be made the subject matter of a petition for a writ. He further stated that if the petitioner was aggrieved by such a decision, then his remedy was by way of an appeal as provided for in S. 35 of the Act. Section 35 is in these terms;