- (1.) The present writ petition was moved on 7.5.1985. An interim order was passed by Bhagabati Prosad Banerjee, J. in terms of prayer (a) of the writ petition on condition that the petitioner will deposit a sum of Rs. 1 lac by Monday next as stated in the order before the respondents and it was made clear that the respondents would be at liberty to process and finalise the price-lists which have been submitted by the petitioner subject to the result of the writ application. It appears further that the petitioner No. 1 Company under the Companies Act and the petitioner No. 2 being its nominee director manufactured paints and varnishes at its factory at Naihati in the District of 24-Parganas. The petitioner have prayed inter alia for a writ in the nature of mandamus commanding the respondents to cancel and/ or withdraw two show cause-cum-demand notices, the bearing No. C, CE-13/R-V1/BKP/84/1503 dated 17.12.1984 and other bearing No. CE-13/R-V1/BKJP/84/8 dated 1.1.1985 and one show cause notice bearing No. CE-l3/R-Vl/BKP/85/391 dated 27.3.1985 all issued by the respondent No. 4 Superintendent of Central Excise, Range-VI, Barrackpore Division and also to command the respondents to dispose of the revised price-lists that are lying pending with the respondents and to restrain them to take steps to recover any alleged demand of differential Central Excise Duty in respect of the period from 18.6.1977 to 21.8.1983 for which all the price-lists excepting price-list No 1/PV and price-list No. 93/PV are pending decision and/or approval before the respondent No. 3, the Assistant Collector of Central Excise, Barrackpore Division and the respondent No. 4 Superintendent of Central Excise, Barrackpore Division and for other consequential reliefs on the ground that there is clear non-application of mind on the part of the respondent Nos. 3 and 4 when the show cause-cum-demand notices dated 17.12.1984 and 1.1.1985 respectively have issued to the petitioners. It is stated in details since the question involved in respect of the alleged demand of Rs. 31,81, 647.64 p. and the alleged demand of Rs. 1,88,25, 290.02 p. is one and identical in all respects and since there has been no adjudication of direction as directed by this Court in C.R. No. 12398 (W) of 1980 the respondents have no competence, jurisdiction and/or authority to call upon the petitioner company to pay the aforesaid alleged demand and/or to show cause about the payment of aforesaid demands. It is placed on record that in view of the fact that the original price-lists, almost all of them are pending before the respondent No. 3 the Assistant Collector of Central Excise, Barrackpore Division and that the revised price-lists have been filed in response to the request of the department and all of them are pending for disposal. It is alleged that in spite of directions given in C.R. No. 12398 (W) of 1980 to decide the dispute in the light of the decision of the Hon'ble Supreme Court, the respondent Nos. 3 and 4 ought not to have issued the aforesaid two show cause-cum-demand notices in the manner as done in the present case. The specific case of the petitioner Company is that so long as the revised price-lists are not decided in accordance with law there is no warrant and legal action on the respondent Nos. 3 and 4 to proceed against the petitioner Company for recovery of any Central Excise duty in respect of the period from 18.6.1977 to 21.8.1983 for which the revised price-lists are ponding before the respondent No. 3. Elaborately in details, the petitioner Company has stated that the alleged demands arising out of the period covered under the price-list No. 1/PV dated 1.12.1977 and 93/PV dated 24.7.1978 is pending before the respondent No. 4 alongwith application for stay thereabout, and, as such, it was improper, arbitrary and without jurisdiction on the part of the respondent Nos. 3 and 4 to call upon the petitioner Company to pay the alleged demand and/or to show cause about the payment of the aforesaid demands The petitioner Company has also challenged the decision in the appeal under Order dated 31.7.1984 in respect of the price-list No. 1/PV and 93/PV as prejudicial against the petitioner company in Complete defiance of the ratio of the decision of the Hon'ble Supreme Court.
(2.) The writ petition is strongly contested by the respondent Nos. 1, 2, 3 and 4 by tiling affidavit-in-opposition sworn by the Assistant Collector of Central Excise, Barrackpore Division. It is disclosed in the said affidavit that the petitioner Company has adequate alternative remedy and without exhausting the alternative remedy, the petitioner Company ought not to have rushed to the Writ Court for reliefs. It is disclosed that the assessable value of excisable goods has to be determined in terms of Section 4 of the Central Excises & Salt Act and/or Rules framed thereunder as laid down by the Hon'ble Supreme Court in the case of Union of India v. Bombay Tyres International 1983 ECR 1627 D (S.C.). The post-manufacturing expenses is not liable to be deducted from the wholesale cash price and since the assessee sells its product through sales depots in different regions in India, the normal price is liable to be determined in terms of Section 4(2) of the Central Excise Act. The assessee submitted the price-list in Part-I though they do not sell its product at the factory gate. It is transpired that the assessee has no wholesale dealer. Their goods further appeared to have been sold at different prices. On or about 19.6.1977 the assessee filed the price-lists effective on 30.7.1977 where there is no claim for deduction. The said case was adjudicated under adjudication order No. 10/78 dated 6.12.1978. The respondents have denied that the petitioner Company is entitled to deductions in the manner as alleged and since 1987 the writ petitioners have deliberately been withholding payment of excise duty amounting to huge amount. It is also placed on record that by an order dated 28.1.1987 the Collector (Appeals) has finally disposed of the appeal of the writ petitioner and as such the instant writ petition has become infructuous. The petitioners' remedy, if any, lies to the forum provided under the Act.
(3.) The petitioner Company has, however, filed an affidavit-in-reply controverting the allegations of the respondents and reiterated the stand taken in the impugned writ petition.;