M/S. Raipur Grinding Industries ... vs Uoi And Ors.
2000 Latest Caselaw 892 Del

ORDER

Arijit Pasayat, CJ.

1. Petitioner challenges order passed by the Central Excise and Gold Control Appellate Tribunal (in short, CEGAT) in appeal No. E/2951/98-C. Issue before the CEGAT was whether the petitioner was fixing the brand name of another person on the excisable goods manufactured by it, thereby making it ineligible for the benefit of Notification No.1/93. Show cause notice was issued under the Central Excise Act, 1944 (in short, the Act) read with the Central Excise Rules, 1944 (in short, the Rules).

2. Factual position, as stated by the petitioner, in a nutshell is that it is a small scale industrial unit engaged in the manufacture of cement under its own trade name. The Deputy Collector (T) issued a show cause notice on 28/31.10.1994 to the petitioner to show cause as to why Central Excise Duty amounting to Rs. 4,31,096 on 1306.350 MT of DCC brand cement manufactured and cleared without payment of proper duty from 1.4.1994 to 19.8.1994 should not be recovered from it under Rule 9(2) read with Section 11A of the Act and as to why a penalty should not be imposed under Rule 52A and 173Q of the Rules. Allegation was that the petitioner was manufacturing and clearing cement under the brand name of DCC, which is registered brand name of Dinesh Cement Udyog Pvt. Ltd., Bhatapara. After amendment of Noti- fication No. 1/93 by Notification No. 55/94 dated 1.3.1994, effective from 1.4.1994 by virtue of para 4 read with Explanation IX of the said Notifica- tion, benefit of SSI exemption is not available to goods bearing brand name/trade name (registered or not) of another person, even if the brand name owner is entitled to small scale concessional benefit. As the peti- tioner had manufactured and removed 1306.350 MT of cement during the period from 1.4.1994 to 19.8.1994 valued at Rs. 17,00,445/- under the brand name of DDC, which is a registered brand name of M/s. Dinesh Cement Udyog Pvt. Ltd., without payment of Central Excise Duty, leviable at the rate of Rs. 330/- per MT and had not followed the procedure of Rule 52A (6 and 7) by removing their excisable goods under the cover of such invoices which bear neither the printed serial number nor are pre-authenticated as required under the said Rules, it was liable to pay Central Excise Duty and Penalty. A reply was submitted by the petitioner. On consideration of the same, the Collector Customs and Central Excise, Raipur, M.P. (in short, the Collec- tor) levied duty of Rs. 4,31,096/- and a penalty of Rs. 25,000. Against the said demand of excise duty and penalty, the petitioner filed an appeal before CEGAT. By the impugned order, it was held by the CEGAT that benefit of Notification No. 1/93 is not available to the goods manufactured and cleared by the petitioner as the same were affixed with the brand name of DCC belonging to another person. However, it was held that the MODVAT credit of duty paid will be available to the petitioner provided it pro- duced duty paying documents showing duty paid nature of the inputs to the satisfaction of the jurisdiction Divisional Officer within two months. Penalty levied was from the date of receipt of order upheld.

3. According to the petitioner, the notification was clearly applicable and the department authority and CEGAT fell in grave error in holding that it was liable to pay duty and penalty as imposed. Learned counsel for the respondent - Union of India through the Secretary, Ministry of Finance and Commissioner of Central Excise raised a preliminary objection as regards maintainability of the writ petition pointing out that a statutory remedy under Section 35L of the Act is available to the petitioner. Learned coun- sel for the petitioner, on the other hand, submitted that existence of alternative remedy under Section 35L was no bar for entertaining the writ petition under Articles 226/227 of the Constitution of India, 1950 (in short, the Constitution) as questions of vital importance were involved. Further, adjudication would involve point of law, with which no factual dispute was involved. Strong reliance was placed on Apex Court's decision in L. Chandra Kumar Vs. UOI, 1993 (3) SCC 261, and a decision of Madhya Pradesh High Court in Neo Sacks Limited Vs. CEGAT, New Delhi, 1999 (114) ELT 826. Learned Counsel for the respondent, on the other hand, relied on a decision of the Apex Court in Chanan Singh and Sons Vs. Collector of Cen- tral Excise, 1999(111) ELT 325 and submitted that when statutory remedy is available, a writ petition should not be entertained.

4. As pivot of petitioner's stand is founded on L. Chandra Kumar's case (supra), it is necessary to take note of a paragraph on which strong reli- ance has been placed. Paragraph 90 of the said judgment on which reliance has been placed reads as follows : "We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunal to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 236/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the constitution."

5. The view expressed in the paragraph quoted above was rendered in a contextually different background. Question before Apex Court was whether decision of the Tribunal created under Article 323A or 323 of the Constitu- tion can be subject to the High Court's writ jurisdiction under Article 226/227 of the Constitution. It was held that it be questioned before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal/Bench fell. Earlier decision in S.P. Sampath Kumar Vs. Union of India, was held to be not laying down correct law. The Apex Court in L. Chandra Kumar's case (supra) was not considering the question of exercise of power under Articles 226/227 of the Constitu- tion when a specific statutory remedy under a statute is provided. In fact, as stated above the position of the Tribunal constituted under the Tribunals Act vis-a-vis the High Court was under consideration. Under the system that existed prior to L. Chandra Kumar's case (supra) direct matters were to be brought before the Supreme Court under Article 136 of the Constitu- tion. It was observed by the Apex Court that situation was to stand modified in the sense that no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitu- tion, but, instead the aggrieved party will be entitled to move High Court under Article 226/227 of the Constitution and from the decision of a Divi- sion Bench of the High Court, an aggrieved party could move the Apex Court under Article 136 of the Constitution. In the case at hand, there is statu- tory remedy provided under Section 35L and not under Article 136 of the Constitution which is conceptually different. A decision is a determination arrived at after consideration of facts, and in the legal context, law related to the facts of a particular case. It is an authority for what is decided and not what consequentially or incidentally flows from the conclu- sion. Judgments of courts are not to be constructed as statutes. To interpret words, phrases and provisions of a statute. "It may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret words of statutes, their words are not to be interpreted as statutes. Observations of the Judges are not to be read as Euclid's theorems, not as provisions of the statute: [See Sreenivasa General Traders Vs. State of Andhra Pradesh, ; M/s. Amar Nath Om Prakash and Others Vs. State of Punjab and others, ]. There is always peril in treating the words of a speech of judgment, as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case [See. Herrington Vs. British Railways Board; (1972) 2 WLR 587]. It is needless to repeat the oft quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it.

6.  Relying on the decision of Madhya Pradesh High Court in the case of Neo Sacks Limited (supra), it has been contended that the appeal provided under the act is restrictive in nature and character and cannot be treated as efficacious remedy to oust the jurisdiction of the Writ Court. Para 16 of the judgment reads as under :       "Moreover the remedy of appeal provided in Section 35L is restrictive in nature and character and thus could not be treated    as efficacious to oust the exercise the writ jurisdiction [See    ."] 
  

7.  It may be further noted that High Court proceeded on the basis that though appeal as provided under Section 35L of the Act to Supreme Court but the said provision is made redundant in view of the L. Chandra Kumar's case (supra) Para 15 reads as follows . 
      "It is true that an appeal is provided against the order of the    CEGAT under section 35L of the Central Excise Act to the Supreme    Court but the Apex Court itself had made it redundant by provid-   ing that no appeal would directly lie to it against any decision    of the Tribunal save otherwise under Article 136 by special leave    from the decision or the judgment of the Division Bench of the    High Court." 
  

8.  With great respect we are unable to agree with the observations con- tained in paras 15 and 16 quoted above. We have analysed the issues which were involved before the Apex Court in L. Chandra Kumar's case (supra). No where in that judgment, it has been stated that though statutory remedy is provided in the statute by way of appeal to the Apex Court, the same is to be bypassed and a writ petition can be filed under Article 226/227. The observation of the Madhya Pradesh High Court that provision was rendered redundant does not appear to be correct proposition in law. 
 

9.  Further it has not been discussed in para 16 as to how the provision is restrictive in nature and cannot be treated as efficacious. Reference has been made to Asstt. Collector C.E. Vs. Dunlop India Ltd., . This decision does not support the view that the remedy of appeal as provided under Section 35L is restrictive in nature and character. On the contrary, the Apex Court observed as follows in para 3:       "In Titaghur Paper Mills Co. Ltd. Vs. State of Orissa,  A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ., held    that where the statute itself provided the petitioners with an    efficacious alternative remedy by way of an appeal to the Pre-   scribed authority, a second appeal to the Tribunal and thereafter    to have the case stated to the High Court, it was not for the    High Court to exercise its extraordinary jurisdiction under    Article 226 of the Constitution ignoring as it were, the complete    statutory machinery. That it has become necessary, even now, for    us to repeat this admonition is indeed a matter of tragic concern    to us. Art. 226 is not meant to short circuit or circumvent    statutory procedures. It is only where statutory remedies are    entirely ill suited to meet the demands of extra ordinary situa-   tions, as for instance where the very vires of the statute is in    question or where private or public wrongs are so inextricably    mixed up and the prevention of public injury and the vindication    of public justice require it that recourse may be had to Art 226    of the Constitution but then the court must have good and sufficient reason to by pass the alternative remedy provided by stat-   ute. Surely matters involving the revenue where statutory reme-   dies are available are not such matters. We can also take judi-   cial notice of the fact that the vast majority of the petition    under Art. 226 of the Constitution are filed solely for the    purpose of obtaining interim orders and thereafter prolong the    proceedings by one device or the other. The practice certainly    needs to be strongly discouraged."  
 

10. On a bare perusal of the decision, it is abundantly clear that the Apex Court's view was to the effect that Article 226 is not meant to short- circuit and circumvent the judicial procedures. The exceptions indicated do not apply to the nature of dispute involved. 
 

11. Reference has also been made to State of Andhra Pradesh Vs. M/s. TG. Lakshmaiah Setty & Sons, . This decision also does not in any way support the view taken by the M.P. High Court. In the said case, the Apex Court observed that the aggrieved assessee has only to pursue the remedies provided in the Act and he has no right to make an application under Section 20 of the Act seeking revision of the orders of assessments made under the Act by original authorities. 
 

12. Decision of the Apex Court in Thansingh Nathmal etc. Vs. The Superin- tendent of Taxes Dourly and others,  to which reference has been made dealt with scope of Articles 132 and 136 of the Constitution and nature of jurisdiction exercised by High Court under Article 226. It was inter alia observed that ordinarily the Court will not entertain a petition for writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. It has not been discussed in the judgment of the M.P. High Court as to why appeal under Section 35L is restrictive and not an efficacious remedy. 
 

13. As has been rightly pointed out by the learned counsel for the respondent in Chanan Singh's case (supra), the Apex court observed that the High Court was right in dismissing the writ petition directing the peti- tioner before it to avail statutory alternative remedy under the Act. At this juncture we may take note of two decisions of this Court in Shalimar Rubber Industries Vs. UOI, CWP 1885/97 decided on 6.5.1997 and Prefect Electric Concern P. Ltd Vs. ACC Central Excise, . In both the cases, it was observed that in view of Section 35L of the Act, petition under Article 226/227 are not maintainable. We do not entertain the writ petition and the same is dismissed.