M.N.BHANDARI, J. - (1.) THESE three writ petitions involve common issue, thus were heard together and are decided by common order.
(2.) LEARNED Counsel appearing on behalf of the petitioner Company submits that the petitioner Company is manufacturing Orthopedic Implants for rehabilitation of handicapped persons. Therefore, Company was exempted from the excise duty in view of the notification issued by the respondents. The specific reference is given to the Schedule providing Tariff under the relevant Chapter and referring Item No. 90.21 of the Tariff Act, 1985 (for short the Act of 1985'), it is submitted that items or implants manufactured for rehabilitation aids to handicapped persons were excluded from the purview of the excise duty. It is submitted that despite of exemption, the authorities have passed orders imposing excise duty on the implants manufactured by the petitioner Company. For the convenience the facts pertaining to writ petition No. 4031/1990 are referred herein. In this case, an order was passed by the Additional Collector imposing demand of excise duty on the petitioner Company along with penalty. Learned Counsel for the petitioners submits that while passing the order by the authorities, it was not noticed that implants manufactured by the petitioner Company are excluded from the purview of excise duty and this was with the object to help the handicapped persons and it is for that reason that even, import of such articles were exempted from the custom duty. Contrary to the Tariff, order was passed by the authorities. Thus, such orders should be treated to be without jurisdiction being without authority of law. It is submitted that if an authority having no jurisdiction to impose excise duty or authority acts contrary to the provisions of law, then the petitioner Company is not required to further prefer an appeal rather in such circumstances, jurisdiction of this Court under Article 226 and 227 of the Constitution of India can be invoked.
(3.) LEARNED Counsel appearing on behalf of respondent - Union of India, on the other hand, submits that the petitioner Company is having an efficacious and alternative remedy under the provisions of Central Excise Tariff Act, 1985. However, without exhausting such a remedy, these writ petitions have been filed and the admission of these writ petitions made ex -parte. Thus, the objection regarding maintainability of the writ petitions taken at the first instance while filing the reply. It is also stated that this is not a case where the exercise of the powers can be said to be without jurisdiction or without authority of law. It is further stated that in reference to Item No. 90.21 of the Tariff, an expert opinion was sought by respondent -Union of India from All India Institute of Physical Medicine and Rehabilitation under the Ministry of Health and Welfare to Government of India. The expert opinion shows that the implants manufactured by the petitioner Company cannot be said to be rehabilitation aids for disabled. Thus, the petitioner Company was not exempted from the excise duty. It is stated that the aforesaid issue is otherwise a question of fact, which has already taken note of and once a finding of fact has been recorded by the competent authority, it can be questioned in appeal, but the writ petition jurisdiction cannot be invoked for recording a finding of fact more so when there exists an expert and technical opinion from the experts. The reference of sub -para D of Para 8 of reply is made in the specific term. According to learned Counsel for the respondents, these writ petitions deserve to be dismissed on the preliminary ground itself and otherwise this Court cannot be asked to sit over the opinion given by the medical experts showing implants manufactured by the petitioner Company, not qualifying to the relevant item of the Tariff, which is exempted from the excise duty.;