MILAP CHANDRA JAIN, J. - (1.) THIS writ petition has been filed with the following prayers : '(i) accept the writ petition, (ii) direct the respondents to accept revised classification list filed by the petitioner for the white cement being produced by it to be treated as rapid hardening cement/ordinary portland cement under sub -head 2502.20, (iii) direct the respondents to make assessment of the petitioner and pass the order to that effect under sub -head 2502.20, (iv) restrain the respondent from realising excise under sub -head 2502.90 at the rate of 40% ad valorem, (v) direct the respondents to give benefit of the notification dated 25 -7 -1991 holding the petitioner liable to pay excise at the rate of Rs. 90/ - P.M.T., (vi) direct the respondents to refund the excess excise duty realised from the petitioner in excess of the excise leviable as per sub -head 2502.20 and the notification dated 25 -7 -1991, (vii) direct the respondents to abide by the orders passed by the Collector, Central Excise, Delhi, a superior authority of the respondent No. 2 and to make assessment in accordance with the direction contained in the order directing the respondents to clear its production under sub -head 2502.20 till the disposal of the writ petition, (viii) grant any other appropriate relief which the petitioner may be found entitled to in the fact and circumstances of the case, and (ix) allow the cost of the writ petition to the petitioner.'
(2.) THE averments made in the petition may be summarised thus. The petitioner Company manufactures white rapid hardening cement at Gotan (Nagaur) since November, 1990. So far, white rapid hardening cement was being classified under sub -head 2502.90 of the Schedule -I of the Central Excise Tariff Act, 1985 (hereinafter to be called 'the 1985 Act'). The excise duty was being paid at the rate of 40% ad valorem. On realising the mistake, the manufacturers namely, J.K. Cement Works and Indian Rayon and Industries, filed revised classification lists putting white rapid hardening cement under sub -head 2502.20 and claiming payment of excise duty at the rate of 215/ - per metric ton (P.M.T.). The petitioner also filed revised classification list Annexure -1. By his order dated September 19,1991 passed in the case of J.K. Cement Works, the Collector, Central Excise (Appeals), New Delhi has held that white cement is rapid hardening cement, it falls under sub -head 2502.20 and excise duty at the rate of 215/ - P.M.T. is leviable on it. Despite knowing this order, the Assistant Collector, Ajmer (respondent No. 1) has refused to treat the petitioner's white cement under sub -head 2502.20 by his order dated October 7, 1991 (Annexure -2). The petitioner Company has been set up in collaboration with M/s. Nohoan Cement Co. Ltd., Japan and it has its shares. It is a company of international reputation in the field of manufacturing rapid hardening cement. The physical properties and chemical composition of the white cement manufactured by the petitioner conform to all tests of rapid hardening cement. Writ petition No. 5207/91, Indian Rayon and Industries v. Union of India, has been admitted on 9 -10 -1991 on identical question relating to the interpretation of the said sub -heads 2502.20 and 2502.90 on the ground of discrimination and also on the ground that subordinate authorities are bound by the decisions of the superior authority and it has been allowed to clear its white cement under the sub -head 2502.20. The respondent No. 1 entered caveat and filed his interim reply against the writ petition reserving his right to file detailed reply to the writ petition. It is admitted by him that the petitioner Company manufactures white cement, its classification list was approved under sub -head 2502.90, excise duty at the rate of 40 per cent ad valorem is now being paid under protest by it and being accepted by the department and the petitioner Company has set up its factory in collaboration with a Japanese Company. It has further been averred that the petitioner has stated in its application dated 28 -9 -1991 (Annexure -1) that it will continue to pay excise duty under sub -head 2502.90 under protest, the petitioner has made incorrect statement in para No. 4 of the writ petition to the effect that the respondent No. 1 has refused to treat the petitioner's white cement under sub -head 2502.20, the writ petition is premature as the matter regarding revision of the classification list is still pending consideration, alternative remedy is provided under the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the 1944 Act') by way of appeal, it is the consistent view of this Court that such matters should be left for the consideration and decision of the officer/authority under the 1944 Act, no cause of action has arisen in favour of the petitioner and the writ petition involves many disputed and complicated questions of fact. It has also been averred that the petitioner should have submitted its application Annexure -1 through the concerned sector/range office and not directly to him (respondent No. 1), as a result thereof, comments have been sought from the Superintendent of the concerned Range, white cement manufactured by J.K. Cement Works has been held to be rapid hardening cement on the basis of the reports of the various tests regarding its physical properties and chemical composition, no such report has been filed by the petitioner before him (respondent No. 1), it has also not been established that the white cement manufactured by the petitioner Company is similar to the white cement manufactured by the J.K. Cement Works, the petitioner Company is registered with Bureau of Standard Institution (B.S.I.) under the head 8042 of 1978 relating to white portland cement, it has not so far filed the certificate of B.S.I, issued under the head 8041 relating to the rapid hardening cement as stated in its letter Annexure -1 and until and unless it is adjudicated that the white cement manufactured by the petitioner is rapid hardening cement the petitioner is not entitled to get its classification list revised to sub -head 2502.20.
(3.) IN its rejoinder dated 29th October, 1991, the petitioner has stated that the payment of excise duty under sub -head 2502.90 is being made under protest under Rule 173B, Central Excise Rules (hereinafter to be called 'the Rules'), it cannot go to debar the petitioner from claiming rights and reliefs in the writ petition, no misstatement of fact has been made in para No. 4 of the writ petition as a copy of the order dated October 7, 1991 has been enclosed with the writ petition itself as Annexure -2, the question of alternate remedy by way of appeal under Section 35B of the 1944 Act is not applicable in this case as the petitioner Company is being discriminated and provisions of Article 14 of the Constitution are being violated, copies of a page of the Register and letter dated 5 -10 -1991 of the petitioner filed by the respondent No. 1 have no material bearing, the letter is not happily and properly worded, so far licence for manufacturing the rapid hardening cement is not possessed by any of the manufacturers and neither any disputed question of fact is involved nor any further inquiry or investigation is required in this case as the material on record is sufficient to establish that the white cement manufactured by the petitioner is squarely covered under sub -head 2502.20. It has further been averred that there are, in all, four to five white cement manufacturers in whole of India, three of them are located at Gotan (Nagaur), out of these three manufacturers two are being assessed under sub -head 2502.20 and only the petitioner is being assessed under sub -head 2502.90, as a result thereof the petitioner is being singled out and is bound to face closure of its factory and to finish the employment of hundreds of its workers and it is entitled to get the benefit of the order of Collector, Central Excise (Appeals), New Delhi passed in the case of J.K. Cement.;