Alpine Industries vs Union Of India And Ors.
1992 Latest Caselaw 381 Del

JUDGMENT

Gokal Chand Mital, C.J.

(1) In this writ petition the petitioner has challenged the show cause notice dated 31st March, 1987 issued by the collector. Central Excise under section 11-A of the Central Excise & Salt Act, 1944 (hereinafter referred to as the Act') which seeks to raise the demand of excise duty amounting to Rs. 26,33.967.40.

(2) By order dated 12th May, 1988 the writ petition was admitted but while declining to grant stay of proceedings, this Court ordered that if any demand is raised. it will not be recovered without obtaining orders from this Court.

(3) During the course of arguments we were informed by the learned counsel for (he petitioner that during the pendency of the writ petition, pursuant to the show cause notice, the Principal Collector of Central Excise passed the adjudication order and an appeal against the aforesaid order has already been filed before the Customs, Excise & Gold (Control), Appellate Tribunal (hereinafter referred to as CEGAT') Mr. Madan Lokur, the learned counsel for the respondents, however, raised a preliminary objection that the writ petition itself is not maintainable. He submitted that in the present case the Principal Collector in exercise of his power under section 11-A of the Act has issued a show cause notice to the petitioner which contains detailed allegations in the statement of facts a to how the petitioner has contravened the provisions of Rules 174. 52A, 53. 9(1), 173G read with Rule 226 of the Central Excise Rules, 1944. He therefore, submitted that since the said notice has been issued by an authority who has power under the statute to issue such a notice, the petitioner was not entitled to invoke the writ jurisdiction.

(4) From the impugned show cause notice it will be seen that the said notice contains clear allegations that the product 'LIP SALVE' manufactured by the petitioner is classifiable under Chapter Heading 3304.00 of the Act as it is a preparation for the care of the skin but the petitioner misled the department by declaring the same on the back of the Classification List as non patent medicine. Thus, the petitioner claimed the exemption from the payment of Central Excise duty which was not applicable to them. Even pursuant to the said show cause notice an adjudication order has already been passed which is appealable before the CEGAT and is fact as stated hereinabove the petitioner has already filed an appeal before the CEGAT. Thus, the action of the respondents in issuing the impugned show cause notice was neither without jurisdiction nor unwarranted in law.

(5) Besides the question whether there was any fraud, collusion, willful misstatement or suppression of facts, is a question of fact which could be adjudicated only by the authority created under the statute for this purpose. To adjudicate upon findings of facts, the writ jurisdiction of High Court cannot be invoked. In this connection reliance can be placed on M/s Jaishri Engineering Co. (P) Ltd. Vs. Collector of Central Excise. Bombay, .

(6) For the reasons stated hereinabove, we are of the view that there is no merit in the writ petition and the same is dismissed with no order as to costs.