JAGDISH SAHAI, J. - (1.) MESSRS . Naini Glass Works, Naini (Hereinafter referred to as the petitioner) have filed this writ petition under Art. 226 of the Constitution of India against the Collector, Central Excise, Allahabad respondent No. 1 (hereinafter referred to as the Collector), the Inspector, Central Excise, Sector II, Naini, Allahabad, respondent No. 2 (hereinafter referred to as the Inspector) and the Deputy Superintendent Central Excise, Allahabad, respondent No. 3, (hereinafter referred to as the Deputy Superintendent) with a prayer that a writ of mandamus he issued commanding the respondents not to demand and recover from the petitioner any excise duty in excess of what has already been paid over tincture bottles cleared from the petitioners factory between 12th September 1961 and 23rd November, 1961 and to decide the petitioners application for refund of excise duty, charged in excess, over tincture bottles cleared between 1st March, 1961 and 12th of September, 1961 and to refund the same to the petitioner. It would contribute to a clear understanding of the points raised before me if the following facts are mentioned : The petitioner is carrying on the manufacture of glass and glassware and in the course of its business also manufactures glass bottles and phials. For the first time with effect from 1st of March, 1961 excise duty was levied on glassware also. Section 13 of the Indian Finance Act provided for the same and in the Central Excise Tarriff, item No. 23A was introduced. That item reads :- "23A. GLASS AND GLASSWARE - (1) Sheet glass and plate glass ……………………………........10% (2) Laboratory glass ware .........................................5 % ad valorem (3) Glass shells, glass globes and chimneys for lamps and lanterns ......10% ad valorem (4) Other glassware including tableware.............. 15% ad valorem".
(2.) THERE is no dispute between the parties that the petitioner produced and cleared some bottles between the period 1-3-1961 to 12-9-1961 and on these bottles was leviable a duty of 15 per cent, ad valorem. It appears that the petitioner made a representation to the Collector of Central Excise, Allahabad whereupon he passed the following orders : "1st Amendment to Trade Notice No. 73/61 (Glass and Glassware No. 5/61). Add the following para at the end :- Para : 3. It has been ascertained on enquiry, that"Tincture bottles" are ordinarily used for scientific purposes. It has, therefore, been decided to classify"Tincture Bottles" as"laboratory Glassware" under Tariff item No. 23A(2) for purpose of assessment. Sd. S.C. Mathur Collector 30-8-1961" During the period 13-9-1961 to 23-11-1961 the petitioner again cleared off a large number of these bottles and the petitioner was charged a duty at the rate of 5% ad valorem. It appears that sometime thereafter the Central Excise authorities realised that the petitioner had been short levied during the period 13-9-1961 to 23-11-1961 and that the duty had to be levied at 15% with the result that an additional sum of Rs. 11,486.05 np. would be due to the Government from the petitioner on. account of duty over and above what the petitioner, had paid, in the meantime, the petitioner claimed from the Department the refund of a sum of Rs. 20,414.06 np. in respect of the period between 1-3-1961 to 12-9-1961 on the ground that the duty at the rate of 15% ad valorem had wrongly been paid and that it should have been charged at the rate of 5% with the result that the petitioner was entitled to that amount. Since the Department in insisting on the payment of Rs. 11,486.05 np. and is not willing to refund the sum of Rs. 20,414.06 np. the present writ petition has been filed in this Court for the reliefs which I have already mentioned earlier. There is no dispute between the parties over facts in the case and for that reason it is not necessary to set out the various allegations made in the petition, the affidavit filed in support of it, the counter affidavit and the rejoinder affidavit. A reference to such of the allegations shall be made which are relevant for the decision of the questions raised before me.
(3.) I have heard Mr. Kackar, learned counsel for the petitioner and Mr. Jagdish Swarup for the respondents. Mr. Kackar has submitted the following two points before me :- (i) That the correct duty leviable in the present case was 5 per cent ad valorem and not 15% ad valorem. (ii) That the orders adverse to the petitioner had been passed without giving him an opportunity of being heard. But before I do so I would like to dispose of the preliminary objection made by the respondents counsel. Admittedly, the petitioner had a right of appeal. Section 35 of the Central Excises and Salt Act, 1944 reads :- "35(1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks lit, confirming, altering or annulling the decision or order appealed against. Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. (2) Every order passed in appeal under this section shall, subject to the power of revision conferred by Sec. 36, be final." There is also a right of revision conferred by Sec. 36 of the Act which reads : "36. The Central Government may, on the application of any person aggrieved by any decision or order passed under this Act or the rules made thereunder by any Central Excise Officer or by the Central Board of Revenue, and from which no appeal lies, reverse or modify such decision or order, Rule 213 reads :- "213. Appeals - An appeal against an order or decision of an officer shall lie ___ (i) if the appeal is against an order or decision of a Superintendent (a) Where there are Deputy Collectors, to the Deputy Collector to whom such Superintendent is subordinate and (b) Where there are no Deputy Collectors, to the Collector or Deputy Collector incharge of a collectorate; (ii) if the appeal is against the order or decision of an Assistant Collector _____ (a) to the Collector to whom such Assistant Collector is subordinate; and (b) Where there is no Collector, to the Deputy Collector-in-charge of the Collectorate; (iii) if the appeal is against the order or a decision of a Deputy collector ______ (a) to the Collector to whom such Deputy Collector is subordinate; and (b) where there is no Collector, to the Central Board of Revenue; (iv) If the appeal is against an original order or decision of a Collector or Deputy Collector-in-charge of a Collectorate, to the Central Board of Revenue; Provided that if, between the date of the order or decision appealed against and the date of the hearing of the appeal, the officer who passed the order or decision is appointed as Deputy Collector or Deputy Collector-in-charge of a Collectorate or Collector, to whom the appeal lies under the foregoing provisions, the appeal shall be heard ____ (a) if such officer is appointed as Deputy Collector, by the Collector; (b) if such officer is appointed as Deputy Collector-in-charge of a Collectorate or Collector, by the Central Board of Revenue." Mr. Kackar contends that the petitioner did not file an appeal because the amount of duty assessed would have been payable under the provisions of Section 189 of the Sea Customs Act, 1878, which has been made applicable to the appeals under the Act by virtue of some of the Central Government Notifications, in the first place, Rs. 11486.06 np. is not a big amount and certainly the petitioner which is a very big concern, could have had absolutely no difficulty in paying the same. Secondly the amount could be deposited during the pendency of the appeal and assuming that the petitioner did not have ready cash it could have had no difficulty in arranging for that amount during the period of pendency of the appeal. There is no justification for rushing to this Court under Art. 226 of the Constitution of India and short circuit the remedy of appeal and revision provided by the statutes. No good ground existed for by passing the appeal. It is true that the Collector would have heard the appeal but there is no Kackars submission that, the Collector would not have brought to bear an impartial appeal. The Collector of Central Excise is a public officer. It cannot be assumed that he would be biased and would not have decided the appeal in an impartial manner. The petitioner res justification to assume without any reason the hands of the Collector, and not to file an appeal. In any case, if it was dissatisfied with the decision of the Collector it could have moved the Government. It must be realised that when the legislation in its wisdom and with all solemnity makes statutory provisions for appeals and Revisions. It is the duty of the courts to respect it and enforce it. The right of the departmental appeal and been provided and that remedy should not normally be by-passed. It must also be realised that the rule that during the pendency of the appeal the amount of duty assessed should be paid is a rule based on sound public policy and has been enacted in the interest of the nation. The idea is to realise public dues so that the work of the nation may go on and public debts may not be put in jeopardy. I am clear in my mind that this writ petition should be dismissed on this ground. However, my orders are appealable and Mr. Kackar has also the merits of the case. I, therefore, think it fit and proper that I should consider his on merits also. I will take the submissions seriatine.;