1990 (2) TMI 59 - HC - Central Excise

Summary

Issues:
1. Maintainability of the Writ Petition under Article 226 of the Constitution of India.
2. Refund of excise duty paid by the Petitioners.
3. Allegations of the Petitioner-firm being a dummy unit.
4. Applicability of alternative remedies and pending Appeal before the Tribunal.

Analysis:

1. The Petitioners filed a Writ Petition seeking a Writ of Certiorari under Article 226 to obtain a license and refund of excise duty. The Petitioners claimed they were entitled to exemption from excise duty under Notification No. 83/83-CE due to the value of their production. However, the Respondents did not issue the license despite acknowledging the application made in 1982.

2. The Respondents initiated proceedings against the Petitioners, alleging the Petitioner-firm was a dummy unit created by another entity. The Collector of Central Excise held in an Order that the Petitioner-firm was fictitious, leading to the imposition of excise duty and penalties. The Petitioners contended that their appeal against this Order was pending before the Tribunal.

3. The Government Pleader argued that the Writ Petition was not maintainable due to the pending appeal before the Tribunal. Citing legal precedents, the Government Pleader emphasized that Article 226 should not be used to bypass statutory procedures unless in exceptional circumstances. The Court agreed with the Government Pleader's argument and held that the issues raised in the Writ Petition overlapped with the proceedings before the Collector of Central Excise and the pending appeal.

4. The Court dismissed the Writ Petition on grounds of maintainability, stating that the Petitioners could not seek a license or refund once their firm was deemed fictitious. The Court rejected the request to allow the Petitioners to clear goods under protest or adjourn the matter. The Court also declined to order a refund of duty paid, suggesting the Petitioners could raise the issue before the Tribunal. Each party was directed to bear its own costs, and the interim order was extended at the request of the Petitioners' counsel.