MILAP CHANDRA JAIN,J. - (1.) MILAP CHANDRA JAIN,J. 1. These writ petitions have been filed (i) for quashing the order (Annexure 10 in the first writ petition and Annexure 2 in remaining writ petitions) of the Superintendent, Central Excise, Udaipur dated October 13, 1986 intimating that the Ministry has decided that the soapstone powder is different than talc, it is not exempt and it is leviable to duty and advising the petitioners to maintain the records and furnish reports and returns as required under the Central Excise Rules, 1944 (hereinafter to be called 'the Rules'), (ii) for declaring that the soapstone powder is covered by exemption Notification No. 23/55 -C.E., dated April 29, 1955 and the petitioners are not required to obtain central excise licences and also to pay excise duty thereon; and (iii) for directing the refund of the central excise duty paid to the respondents by the petitioners with interest at the rate of 18% per annum. As the facts are similar and the law involved is the same in these writ petitions, they are being disposed of by this common order. Their facts may be summarised thus.
(2.) THE petitioner's case is as follows. They carry on business of minerals, particularly in soap -stone and have mines in Tehsil Girwa (Udaipur). They have roller -mills for grinding soap -stone lumps into powder. Due to the insistence of the respondents, they have obtained licences under the Central Excises and Salt Act (hereinafter to be called 'the Act') and are paying the central excise duty under protest. They get their licences renewed under protest. An appeal before the Assistant Collector, Central Excise and Customs, Division Udaipur (respondent No. 3) has been filed against the levy of central excise duty on the soap -stone powder. The Indian Soap -stone Producers' Association, Udaipur of which they are members, have submitted memorandums An nexures 2 and 3 before the respondent No. 3 and also to the Ministry of Finance, Government of India, New Delhi stating that soap -stone is talc which has been exempted under Notification 23 -CE dated April 29, 1955 and inviting attention towards the problems which the soap -stone industry is facing with regard to the central excise. The Under Secretary, Ministry of Finance, Government of India, New Delhi by his letters (Annexures 5, 6 and 7) has advised the Association to approach the jurisdictional Col -lector and the Assistant Collector, Central Excise for the redress of the grievances of its members. The Assistant Collector, Central Excise and Customs, Udaipur (respondent No. 3) sent letter Annexure 8 informing the Secretary, Udaipur Chamber of Commerce and Industry, Udaipur that the Central Government has taken decision that benefits of Notification No. 23 -C.E., dated April 29, 1955 be extended to soap -stone if the conditions specified therein are complied with. Accordingly, they returned their licences to the respondent No. 4 enclosing revised classification list and affidavits stating that the soap -stone powder prepared in their factories is being used as 'extenders, suspending agents, fillers and diluents'. The Superintendent, Central Excise and Customs, Udaipur (respondent No. 4) has intimated vide his letter dated October 13,1986 (Annexure 10 in first writ petition and 2 in other petitions) that the Ministry has decided that the soap -stone powder is different from talc, it is not exempt and it is leviable to duty and advising them to maintain records and to furnish reports and returns as per requirements of the Rules. It will be a futile exercise to file appeal before the departmental authorities in view of the said decision taken by the Ministry of Finance, Government of India. As such they have got no other adequate legal remedy. The respondents No. 1 to 4 admit in their replies that the petitioners manufacture soap -stone powder from soap -stone lumps at various places in Udaipur district licences were taken by them under the Rules, returns and statements were furnished their Association submitted representations Annexure 2 and 3, the Secretary, Udaipur Chamber of Commerce and Industry, Udaipur was intimated with the said decision of the Government of India that the benefits of Notification No. 23 -C.E., dated April 29, 1955 can be extended to soap -stone if the conditions specified therein are complied with vide letter Annexure 8, the petitioners surrendered their licences to the respondent No. 4, submitted revised classification lists and affidavits and the respondent No. 4 has is sued the letter Annexure 10. In the replies, a preliminary objection has been taken that the petitions are not maintainable as petitioners have not availed of alternate remedies available under the Act, letter Annexure 10 is not an adjudication order, petitioners could approach the Assistant Collector for passing an adjudication order and against his order appeal before the Collector (Appeals) and, thereafter, before the Central Excise and Gold Control Tribunal, could be filed.
(3.) AT the commencement of the arguments, the learned counsel for the petitioners submitted that they do not press their case on the ground that the grinding of soap -stone lumps into soap -stone powder does not involve manufacturing process. They confined their contentions on the point that soap -stone is talc and is thus exempted under Notification No. 23 -C.E., dated April 29, 1955. They contended that the formal decision of the Government of India conveyed through the letter Annexure 8 was taken on the various representations of the petitioners and their Association after long protracted negotiations, it has been reversed without hearing the petitioners or the Association, violating the principles of natural justice, the order is also cryptic and non speaking, it does not contain any reason for reversing the previous decision, the Ministry had no jurisdiction to decide so and it would have been a futile exercise to file appeals under the Act as the appellate authority could not have taken any decision contrary to or different from the said decision of the Ministry. They further contended that the soapstone and talc are known and treated as same mineral by the persons who use or deal with them. In support of their contentions they relied upon the literature referred to in paras 13 to 22 and decision referred to in para 23.;