TMI Blog1990 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has called upon the petitioner to show cause as to why the petitioner-company should not take out a licence under Rule 174 of the Central Excise Rules, 1944 for the manufacture of resin master falling under Tariff Item 15A and get a Classification list/Price list approved before effecting further clearance. In the show-cause notice, it is stated that the petitioner-company have been manufacturing resin master classifiable under Tariff Item 15A (i) of Central Excise Tariff Schedule and have been using the same in the manufacture of dipping solution falling under Tariff Item 68 and clearing both for captive consumption within the Mills without getting a proper licence and without filing a classification and price lists as required under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 onwards and duty is therefore payable from that date under Rule 9(2) of the Central Excise Rules. He has also held that the petitioner-company is liable for penal action under Rule 9(2) read with Rule 173-Q of the Central Excise Rules and has actually imposed a penalty of Rs. 250/-. 2. The respondents have not filed a counter-affidavit and Mr. N. Jothi, learned Additional Central Government Standing Counsel, appearing for the respondents says that he will argue the case without a counter-affidavit. 3. Mr. S. Govind Swaminathan, learned Senior Counsel, appearing for the petitioners has put forward two contentions: (i) that the goods are not marketable commodities and therefore excise duty is not payable under Section 3 of the Act; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of final disposal of the case, as to whether the petitioner should be relegated to the statutory alternative remedy. There are several decisions on this aspect also. In P.K. Muthuvelappa Goundar v. The Deputy Registrar of Cooperative Societies, Coimbatore and Others [1960 (II) M.L.J. 392], it is held as follows:- "The availability of other remedies to the aggrieved party may weigh with the Court in refusing a writ under Article 226 of the Constitution but cannot disentitle him to get the relief or preclude the Court from issuing the writ. I am of opinion that however convenient or expedient it may be to dismiss a writ petition before issuing rule nisi on the ground of a subsisting alternative remedy, it may not always be just to do so at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or respondents, that the writ petition has to be dismissed on the ground that there is an adequate alternative remedy, cannot therefore be countenanced. 5. In support of the first contention, reliance is placed by counsel for the petitioner on the decision in Ceat Tyres Of India Ltd. v. Union Of India And Others [1987 (30) E.L.T. 857 (Bombay)]. The solution that is used in the Tyre Industry was the subject matter of discussion in the said judgment. The solution is described as Resorcinol, Formaldehyde Latex mix or dip solution which is a mixture of six substances knwon as resorcinol, formaldehyde, caustic soda, styrene butadine latex, vinyl pyeidine latex and water. The question that was decided in that case was whether this said solution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 9-E of the Central Excise Rules. It is contended that there is no removal of the said goods within the meaning of Rules 9 and 49 which is a condition precedent for the levy and collection of duty. It is clearly alleged that the resin master and dipping solution are not sold or consumed in the market and that they arc not capable of being sold or purchased. They are neither marketed nor marketable and have no distinctive name, use, character or serviceability. The resin master and the dipping solution get hardened within a few hours of its preparation. They have to be consumed immediately and cannot be stored. These facts have not been disputed by the respondents and as already stated, they have not filed a counter-affidavit. I am therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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