S.S.BYAS,J. - (1.) IN this writ petition, the petitioner Challenges the legality of the order Annexure 6, dated October 11, 1977, by which the petitioner was advised to take out a licence and pay duty on dross and skimmings.
(2.) BRIEFLY recounted, the relevant facts are that the petitioner is a private limited company dealing in the manufacture of the aluminium rods out of aluminium ingots. In the manufacturing process undertaken by the petitioner for the purpose of extracting pure aluminium and separating impurity, ingots are put into furnace. While pure aluminium stands extracted by this process, the impurities are thrown out. This impurity is known as dross and skimmings. The contention of the petitioner is that no Excise duty is leviable on this dross and skimmings under the Central Excises and Salt Act, 1944 ('the Act' hereinafter). However, on June 18, 1977, Item No. 68 came to be inserted in the First Schedule, which provided that duty shall be levied at 10% ad valorem on all other goods not elsewhere specified. The Inspector, Central Excise, Sojat City, thereafter called upon the petitioner to take out a licence for the manufacture of dross and skimmings and to pay duty on them. The petitioner raised protest and contended that no excise duty can be levied on dross and skimmings as they are not 'excisable goods' nor are they manufactured products. The matter went to the Assistant Collector, Central Excise and Customs, Jodhpur, who concurred with the Inspector and advised the petitioner to take a licence and pay duty by his impugned letter Annexure 6. It was contended by the petitioner that dross and skimmings thrown out in the process of manufacture of aluminium rods and sheets are not manufactured goods and as such not covered by Item 68 of the Schedule. It was prayed that a declaration be granted that no duty is leviable on dross and skimmings and suitable directions be issued to the respondents not to charge duty on them. While maintaining that dross and skimmings are assessable to Excise duty under Item 68 of the Schedule, it was contended by the respondents that the petition is not maintainable, because efficacious alternate remedy is available to the petitioner. The petitioner should first exhaust the alternate remedy provided in Chapter VIA of the Act. The remedy under the said Chapter is still available to him. Annexure 6 has not finally decided the matter. Under Annexure 6, the petitioner has been called upon for personal hearing -before the Assistant Collector. The matter is yet to be finally decided by the Department whether duty can be levied on dross and skimmings and it will be done after giving an opportunity of hearing to the petitioner. The petition is, therefore, premature. I have heard the learned counsel for the parties at length.
(3.) AS regards the alternate remedy, it was contended by Mr. Mridul that the writ petition was admitted after a notice to the respondents. It would not be a sound exercise of discretion now to refuse to hear the petition on merits. The petition was admitted long back in 1977. It would be, therefore, against the well settled cannons of justice now to refuse the hearing on merits of the case. The submission of Mr. Joshi is that though the petition was admitted long back, the alternate remedy has not become time barred as yet. No prejudice is to be caused to the petitioner in case he exhausts the alternate remedy first before coming to this Court.;