AMBICA METAL YARN MFG CO Vs. SUPERINTENDENT CENTRAL EXCISE

JUDGEMENT

(1.) A partnership firm which is engaged in the business of slitting metallized polyester films by cutting the same into thin strips with the aid of machines and selling the same has approached this Court by way of a petition under Articles 226 and 227 of the Constitution of India in order to challenge two orders namely (1) the order as per Annexure B dated 1/12/1980 passed by the Assistant Collector of Central Excise Baroda Division holding that the product in question was chargeable to excise duty under Tariff Item 18 (II)(iii) and (2) the order as per Annexure C dated 20/08/1980 passed by the Assistant Collector of Central Excise Baroda Division refusing to grant refund in respect of the excise duty already paid for the period from 29/03/1975 to Mar 28/03/ 19/04/1978 /04/ 197 8/09/1978 and October 197 8/11/1978 totaling to Rs. 1 61 424

(2.) In so far as the first challenge is concerned .he impugned order as per Annexure B has been passed by the Assistant Collector of Central Excise at Baroda. An appeal is competent under sec. 35 of the Central Excises and Salt Act 1944 (the Act). The appeal lies to the Collector of Appeals Bombay. Thereafter in case the decision of the appeal is adverse to the petitioner the revisional authority under sec. 36 of the Act can be approached. The petitioner has invoked the high prerogative jurisdiction of this Court under Articles 226 and 227 of the Constitution of India without approaching the appellate or the revisional authority. The question whether or not the operations carried on by the petitioner constitute manufacturing activities or not and whether the product brought into existence by the petitioner is one which is chargeable to duty under I. I. 18 (II)(iii) or any other Entry is a question which requires to be resolved by the authorities constituted under the Act taking into consideration the material produced by the party and taking into account all relevant circumstances. It can be urged before the appellate authority that the activity carried on by the petitioner does no; amount to a manufacturing activity. The petitioner can also contend that assuming that it amounts to manufacture of a product the product is chargeable to duty under some different Entry. All these are questions which cane satisfactorily resolved by the appellate authority especially constituted under the Act for this purpose. The petitioner can carry the matter further by way of a revision to the revisional authority in case he fails in his appeal and this Court can thereafter be approached by way of a petition under Article 227 of Constitution of India in case the order passed by the revisional authority is adverse to the petitioner. The jurisdiction of this Court will then be restricted to the question whether or not the decision rendered by the competent authority under the Act is a plausible one or whether it discloses any error apparent on the face of the record calling for interference in exercise of the high prerogative jurisdiction under Article 227 of the Constitution. The authorities constituted under the Act must be permitted to discharge the functions for which they are constituted. They must be given an opportunity to play their statutory role in accordance with law and decide such questions in exercise of the functions entrusted to them by the Legislature under the Act. What is more the authorities constituted under the Act have the time to collect data and obtain expert opinion on technical matters if necessary. They also have the necessary expertise. And it is their function to pronounce on all such questions raised by manufacturers who are required to pay excise duty under the Act in connection with the manufacture of their products. It is the birth right as also the statutory obligation of these authorities to fulfill the purpose for which they have been created by the sovereign will. As it is the Courts are burdened with arrears of alarming proportions Several matters which are exclusively within the jurisdiction of the Courts remain unattended. Those who have suffered injustice keep on waiting. Delay adds insult to their injury. The Court will not therefore do what the authorities specifically constituted under the Act which are perhaps better equipped can do apart from the fact that it would not be proper for the Court to usurp their functions instead of restricting its own jurisdiction to the aspect as to whether decisions rendered by them are amenable to the jurisdiction under Article 227 by reason of any error apparent on the face of the record. The Court will not be able to do the work which is exclusively within its province if it gratuitously undertakes what others can do and ought to do it being within their jurisdiction. In trying to do what others can do the Court will not be able to do what it alone can do. And the arrears and the attendant injustice will grow day by day. And in trying to solve the problem of others it will not be able to solve its own problems. The mountain of arrears will become unmanageable and will undermine and even scuttle the system. The High Court will not therefore ordinarily anterior in exercise of the power under Article 227. Not ordinarily of course does not mean never. In some cases the High Court might consider expedient in the interest of justice to do so. For instance in two types of cases the High Court might interfere (unless the Revenue is prepared to stay the recovery the during the pendency of proceedings before the appellate or revisional authority) viz:

(3.) Only in such rare cases the Court might possibly entertain a petition made without recourse to the machinery provided by the Act. Having regard to the circumstances of the present case however we are not inclined to entertain this petition on merits and to decide on our own as to whether or not the product brought into existence by the petitioner is chargeable to duty under one or the other Tariff Items of the Schedule to the Act. Learned Counsel for the petitioner however submits that since the High Court had admitted the petition on 15/12/1980 the petitioner had not filed any appeal against the order and that the Department may assume the posture that the appeal is time-barred if an appeal were to be filed in the wake of the order rejecting the application. In order to remove this hurdle in the way of the petitioner it is directed that if the petitioner lodges an appeal on or before 15/03/1982 the Department shall entertain the appeal without raising the plea of limitation and dispose of the appeal in accordance with law with expedition preferably within six months. It will be open to the petitioner firm to raise such other contentions as are open to it under the law before the appellate forum and it will be open to the Department to deal with these questions on merits. We refrain from expressing any opinion on the points which have been raised in the course of the petition in view of the fact that we are not inclined to entertain the petition for the aforesaid reasons. Respondents have also raised several contentions on merits. We are not expressing any opinion on these questions.