V.K.JHANJI, J. - (1.) IN this, application, prayer made is to dismiss the writ petition as being non-maintainable because the petitioner has not exhausted the alternative remedy of appeal provided under the Central Excise and Salt Act, 1944 (in short the 1944 Act).
(2.) VIDE notice dated 23.3.1994, the Collector, Central Excise Collectorate, called upon the petitioner to show-cause why penalty should not be imposed upon it under rule 209-A of the Central Excise Rules. Vide the said notice, petitioner was asked to produce at the time of showing cause all the evidence, documentary or otherwise, upon which it intended to rely in support of its defence. Petitioner was also asked to state whether it wishes to be heard in person or through its legal representative before the case is adjudicated. Petitioner instead of submitting its reply or evidence, filed the present writ petition. It is contended that by the counsel for the respondent that the writ petition is pre-mature as the petitioner has not exhausted the alternative remedy of appeal provided under the 1944 Act. I find force in the contention of counsel for the respondent. In the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603, it was held by the Hon'ble Supreme Court.; "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution." Likewise in State of Goa v. Leukoplast India Limited, AIR 1997 SC 1875, the Hon'ble Supreme Court has held that the assessee should not be allowed to bye-pass the Statutory remedies where the question of fact would have been properly agitated and asserted. In this case, petitioner has come to this Court at the stage when only a show-cause notice has been issued to it. Petitioner instead of coming to this Court should have replied to the show-cause notice, Annexure P-1 and in case the same was decided against it, it has a right to file an appeal before the appellate Authority. In this view of the matter, the writ petition is disposed of with a direction to the respondent that in case petitioner files reply to show-cause notice, Annexure P-1, within three months from today, the appropriate Authority shall pass a speaking order. Till such time the order is passed recovery shall not be effected against the petitioner. The writ petition as well as Civil Misc. application stand disposed of in the terms indicated above. Petition disposed of.;