Research › Browse › Judgment

Madhya Pradesh High Court · body

1997 DIGILAW 749 (MP)

Ramco Industries Ltd. v. Union Of India (Uoi)

1997-11-12

DEEPAK VERMA

body1997
ORDER Deepak Varma, J. 1. This petition has been filed under Article 226 of the Constitution of India, whereby the petitioners challenge the orders Annexure-G and H. By the aforesaid orders the method of assessment has been reviewed by the authorities concerned. 2. Petitioner No. 1 is a duly incorporated company under the Companies Act, 1956. It is engaged in the business of manufacturing various types of asbestos cement products. It has set up its industry in the backward area of Makshi, district Shajapur. By virtue of the fact that petitioner No. 1 has set up its industry in backward area, the State Government has granted certain incentives to the petitioner No. 1 industry. The initial period of the said incentives expired on 17-3-1996, but has been extended further by the State Government, for a further period of two years, therefore, it is still enjoying the said benefits. 3. The products which are being manufactured by the petitioner No. 1 Company are excisable goods, which fall under Heading No. 68.04 of the Central Excise Tariff Act. The rate of duty is 25 per cent ad valorem on the price of the goods at the factory gate. In addition to this there is also special excise duty leviable on the goods, which is to the tune of 10 per cent of the basic excise duty. Petitioner was required to file a price list under Rule 173C of the Central Excise Rules (for short the Rules). This is to be submitted to the Assistant Commissioner, Central Excise, having jurisdiction in the matter. He then, in turn, is required to determine the assessable value as per Section 4 of the Central Excises and Salt Act, 1944 (for short the Act). 4. It has been contended by the petitioner that for all these years the price lists which were submitted by petitioner No. 1, from year to year, have been duly approved and no objection at any point of time was raised by the respondents. It has further been mentioned that the wholesale price at which petitioner's goods are sold in M.P. are on a higher side, whereas the goods which are sold in other States are on a lower side. This is on account of the fact that no Central or State sales tax are leviable on the petitioner's goods, on account of the Notification issued by the State Government. This is on account of the fact that no Central or State sales tax are leviable on the petitioner's goods, on account of the Notification issued by the State Government. Petitioners have further submitted that it has been paying the excise duty as per the price list filed by it regularly. However, sometime in the year 1990 petitioner was issued notices calling upon it to show cause as to why the price list submitted by it should not be reviewed. Petitioners submitted its reply. The Authority, i.e. Assistant Collector, Central Excise, recorded a finding against the petitioners and passed an order on 6-5-1991 Annexure-G. Similar orders have been passed with regard to other price lists. On the basis of these orders the earlier price lists which were submitted and approved have been modified which are collectively marked as Annexure-H. The petitioner No. 1 was then directed to pay the excise duty on all clearances on the value which was fixed by it for sale of its goods in M.P. Against these orders, instead of filing appeals under Section 35F of the Act, the petitioners have approached this Court with a prayer to invoke the jurisdiction conferred, on this Court, under Article 226 of the Constitution of India. 5. Respondents have filed their reply in oppugnation. At the outset they have submitted that the impugned orders are appealable under Section 35F of the Act and no case has been made out for taking it to be an exceptional case, where the extraordinary powers conferred on this Court should be exercised. To advance the contention further, long catena of cases have been cited, that show a statutory remedy of appeal is available, instead of entertaining the petition, the aggrieved party should be directed to file an appeal. 6. I have heard the Counsel for parties and perused the record. Shri Kohli, appearing for the petitioners, has submitted that the authority concerned did not have any powers to review its own order. He has also submitted that the said orders are based on a judgment of the Bombay High Court reported in 1984 (18) E.L.T. 172 (Bom.) (Godrej and Boyce Mfg. Co. Pvt. Ltd. v. Union of India and Ors.), whereas this judgment has been set aside by the Supreme Court on 4-9-1989 in Civil Appeal No. 3779 of 1989. He has also submitted that the said orders are based on a judgment of the Bombay High Court reported in 1984 (18) E.L.T. 172 (Bom.) (Godrej and Boyce Mfg. Co. Pvt. Ltd. v. Union of India and Ors.), whereas this judgment has been set aside by the Supreme Court on 4-9-1989 in Civil Appeal No. 3779 of 1989. His contention is that since the judgment on the basis of which the impugned orders have been passed has been set aside by the Supreme Court, therefore, the authorities concerned were not justified in passing an order on the basis of the said judgment. It has also been brought to my notice, during the course of the hearing that a Circular dated 8-2-1990 has also been issued by the respondents on the basis of the judgment of the Bombay High Court, in Godrej and Boyce Mfg. Co. Pvt. Ltd. (supra). Shri Kholi has also placed reliance on judgments of various other High Courts to advance his contention, that in absence of any powers conferred on the authorities to review the matter, the impugned orders deserves to be set aside and quashed. 7. On the other hand Shri Neema has strongly contended that there is no reason why all these points cannot be taken up in an appeal and there is no reason why the points if so taken up, the Appellate Authority shall not consider the same in the light of the present legal position. Shri Neema has also referred to a judgment of the Supreme Court reported in AIR 1994 SC 754 (State of U.P. and Anr. v. Labh Chand). In the said judgment it has been held as under: "When a Statutory Forum or Tribunal is specifically created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well settled." 8. Contention of the petitioners is that since this petition has been admitted for hearing, therefore, it is desirable that, it should be heard and disposed of on merits. 9. I am afraid, in view of the judgment of the Supreme Court in Labh Chand's case (supra) the controversy has now been set at rest. Contention of the petitioners is that since this petition has been admitted for hearing, therefore, it is desirable that, it should be heard and disposed of on merits. 9. I am afraid, in view of the judgment of the Supreme Court in Labh Chand's case (supra) the controversy has now been set at rest. Admittedly the petitioner has an alternative and efficacious remedy of filing an appeal under Section 35 of the Act. The same has not been exhausted so far. Therefore, without expressing any opinion on the merits or demerits of the case, I direct the petitioners to file appeal/appeals under Section 35F of the Act, within a period of 30 days hereof. All questions which have been raised and projected in this petition are left open. The authority concerned is expected to grant hearing to the parties and then to pass a reasoned order. 10. As regards delay, since the petition was admitted by this Court on 29-1-1992 and interim order of stay was also passed in favour of the petitioner on 5-2-1992, I hereby condone the delay, provided appeal/appeals are preferred within a period of 30 days. It is further directed that bi parte order of stay passed by this Court on 5-2-1992 shall continue to operate till the appeal is finally disposed of on merits. It has become necessary to pass order of stay, on account of the fact that the Appellate Authority is already flooded with appeals, which, it is not able to take up for hearing urgently. Since the order of stay is operative from 5-2-1992, therefore, it is desirable that the same be directed to continue until the disposal of petitioners' appeals. 11. With the aforesaid observations this petition is disposed of, but with no order as to costs. Security deposit, if any, shall be refunded to the petitioners after due verification.