NIHON NIRMAN LTD. Vs. ASSISTANT COLLECTOR, CENTRAL EXCISE

JUDGEMENT

(1.) THIS writ petition has been filed with the following prayers :

(2.) THE averments made in the petition may be summarised thus. The petitioner Company manufactures white rapid hardening cement at Gotan (Nagaur) since November, 1990. So far, white rapid hardening cement was being classified under sub -head 2502.90 of the Schedule -I of the Central Excise Tariff Act, 1985 (hereinafter to be called 'the 1985 Act'). The excise duty was being paid at the rate of 40% ad valorem. On realising the mistake, the manufacturers namely, J.K. Cement Works and Indian Rayon and Industries, filed revised classification lists putting white rapid hardening cement under sub -head 2502.20 and claiming payment of excise duty at the rate of 215/ - per metric ton (P.M.T.). The petitioner also filed revised classification list Annexure -1. By his order dated September 19,1991 passed in the case of J.K. Cement Works, the Collector, Central Excise (Appeals), New Delhi has held that white cement is rapid hardening cement, it falls under sub -head 2502.20 and excise duty at the rate of 215/ - P.M.T. is leviable on it. Despite knowing this order, the Assistant Collector, Ajmer (respondent No. 1) has refused to treat the petitioner's white cement under sub -head 2502.20 by his order dated October 7, 1991 (Annexure -2). The petitioner Company has been set up in collaboration with M/s. Nohoan Cement Co. Ltd., Japan and it has its shares. It is a company of international reputation in the field of manufacturing rapid hardening cement. The physical properties and chemical composition of the white cement manufactured by the petitioner conform to all tests of rapid hardening cement. Writ petition No. 5207/91, Indian Rayon and Industries v. Union of India, has been admitted on 9 -10 -1991 on identical question relating to the interpretation of the said sub -heads 2502.20 and 2502.90 on the ground of discrimination and also on the ground that subordinate authorities are bound by the decisions of the superior authority and it has been allowed to clear its white cement under the sub -head 2502.20.

(3.) IN its rejoinder dated 29th October, 1991, the petitioner has stated that the payment of excise duty under sub -head 2502.90 is being made under protest under Rule 173B, Central Excise Rules (hereinafter to be called 'the Rules'), it cannot go to debar the petitioner from claiming rights and reliefs in the writ petition, no misstatement of fact has been made in para No. 4 of the writ petition as a copy of the order dated October 7, 1991 has been enclosed with the writ petition itself as Annexure -2, the question of alternate remedy by way of appeal under Section 35B of the 1944 Act is not applicable in this case as the petitioner Company is being discriminated and provisions of Article 14 of the Constitution are being violated, copies of a page of the Register and letter dated 5 -10 -1991 of the petitioner filed by the respondent No. 1 have no material bearing, the letter is not happily and properly worded, so far licence for manufacturing the rapid hardening cement is not possessed by any of the manufacturers and neither any disputed question of fact is involved nor any further inquiry or investigation is required in this case as the material on record is sufficient to establish that the white cement manufactured by the petitioner is squarely covered under sub -head 2502.20. It has further been averred that there are, in all, four to five white cement manufacturers in whole of India, three of them are located at Gotan (Nagaur), out of these three manufacturers two are being assessed under sub -head 2502.20 and only the petitioner is being assessed under sub -head 2502.90, as a result thereof the petitioner is being singled out and is bound to face closure of its factory and to finish the employment of hundreds of its workers and it is entitled to get the benefit of the order of Collector, Central Excise (Appeals), New Delhi passed in the case of J.K. Cement.