P.K.BALASUBRAMANYAN, J. - (1.) PETITIONER , the Central Coalfields Limited, has filed this writ petition seeking the issue of a writ of certiorari to quash Annexure -18 communication issued by the office of the Assistant Commissioner, Central Excise Division, Ranchi, in respect of the clearance of excisable goods from the Central Repair Shop of the petitioner located at Barkakana in the district of Hazaribagh. By that communication, dated 6.6.2003, the petitioner was informed that the exemption under Notification No. 63/95 CE dated 16.3.1995, was not available to the goods manufactured in the concerned workshop, since the concerned workshop was a factory registered under the Factories Act, 1948. It is seen that the petitioner was issued a show cause cum demand notice dated 8.4.2003, informing the petitioner that the manufactured articles were dutiable under the Excise Act, 1944 and the petitioner has submitted a reply dated 3.6.2003, to that notice. It is common case that the adjudication proceedings in that behalf is pending in terms of Section 11 -A of the Act.
(2.) ACCORDING to the petitioner, the impugned order dated 6.6.2003, was not sustainable in view of the fact that the Customs Excise and Gold (Control) Appellate Tribunal, Eastern Bench, has decided that the workshop in question was a 'mine ' within the meaning of the Mines Act, 1952 and hence it could not be considered to be a factory within the meaning of Section 2 (m) of the Factories Act, 1948 and hence the exemption notification referred to in the order as well as the ones earlier issued, applied to the articles manufactured in the workshop for the purpose of supply to the mines of the Company and this decision was binding on the authorities concerned and judicial discipline warranted that the authority follow the decision rendered by the Appellate Tribunal. This is sought to be met by counsel for the Department by pointing out that the subject matter of the decision rendered by the Appellate Tribunal was not relating to the exemption provided by notification No, 63/95 CE and that the decision relating to an earlier notification was rendered without bearing in mind the fact that the workshop in question was one registered under the Factories Act and consequently outside the exemption notification. In any event, it is submitted that this question need not be considered or decided now and it would be appropriate to leave it for adjudication by the adjudicating authority against whose decision, an appeal and a further appeal are provided by the Statute and it would be time enough for this Court to consider that question when it reaches this Court in the regular course. We are inclined to find some substance in this contention of the learned Counsel for the department. We also think that the time has not arrived for us to decide the question posed for a decision before us by the learned counsel for the petitioner. How far the principle of res judicata would apply in the matter of assessment under the Excise Act for different years and if the principle applies, what exactly was decided earlier by the Appellate Tribunal and whether the Department is not entitled to say that a particular significant fact was omitted to be considered and consequently the prior decision cannot be considered to be final, are all questions that may require examination at the appropriate stage. The fact that the workshop is registered as a factory under the Factories Act, 1948 is not disputed. But it is pointed out that even the workshop which satisfies the definition of a 'mine ' under the Mines Act, 1952 had to be registered under Factories Act. for the purposes of adopting health and safely measures under the Factories Act in view of the subsequent requirement insisted on by the notification, SO No. 1188 dated 30.3.1964, under the Mine Act, 1952 and therefore the factum of registration under the Factories Act by itself cannot conclude the issue.
(3.) WE do not think that the time has come for us to decide all these questions. We think that we should leave the parties to have the adjudication proceedings completed pursuant to the issuance of Annexure - 16 notice and Annexure -17 reply filed by the petitioner. Obviously, in that proceeding, the petitioner will have an opportunity of being heard and can establish that the goods are liable to be exempted in view of notification No. 63/95 CE and the Department also can have an opportunity to establish that the exemption under the said notification does not apply. We, therefore, decline to answer the questions raised before us in this writ petition. We also find that the questions to be decided are mixed questions of fact and law and it would be appropriate to leave them to the authorities to decide in the first instance.;