DAYAL LAMINATES (PVT.) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is a Company incorporated under the Companies Act and carries on the business of manufacturing paper based decorative laminated sheets and Block Boards. The factory of the Company is established in village Makani Distt. Dhar. The question involved in this petition is whether articles of wood and other products are to be classified under sub -heading 4408.90 or 4410.90 of the Schedule of Central Excise Tariff Act, 1985. In case of classification under heading 4410.90, the duty is nil; whereas if classified under Heading 4408.90 the duty is 30%. The respondents issued show -cause notice to the petitioner marked as Annexures P/2 and Annexure P/4. The petitioners submitted reply Annexures P/3 and P/S pending final decision the respondents accepted the classification under sub -heading 4410.90 provisionally and held that duty was nil, as per Annexure P/6 and P/6 -A on 23.9.93. Without finalising the issue the respondents demanded the payment of duty on the basis of 4408.90 and issued show -cause notices Annexure P/2and P/4. Aggrieved by such demand and notice the petitioner filed this writ petition.

(2.) COUNSEL for the petitioner submits that the respondents in the face of opposition were under legal obligation to decide the question before insisting upon the payment of duty. He further submitted that the reply Annexure P/3 and P/S are still pending for disposal He goes on to say that no demand can be made in the face of provisional decision having been taken in favour of the petitioners. He, therefore, prays for quashment of show - cause - cum -demand notices (Ex. P/2 and P/4).

(3.) IT is, overlooked that the petitioner has not prayed for adjudication of the question of classification. The grievance before me is that the respondents have not discharged their obligation imposed under the law to decide the matter finally one way or the other. In my view there can be no legitimate opposition to this grievance. In AIR 1992 SC 2279 (Shyam Kishore & Ors. v. Municipal Corporation of Delhi and another) it is held that resort to Art. 226 and 227 of the Constitution of India by way of writ petition is not proper when a more satisfactory solution is available on the terms of statute itself.