TMI Blog2007 (3) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: (a) The Members of the petitioner association are owners of Dyeing and Bleaching factories located in Karur District and are engaged in the business of job work of processing yarn received from various customers for the purpose of bleaching and dyeing the same and returning the same to the customers in lieu of which they are paid labour charges on job work basis based on the number of bundles for which job work is done. (b) The members of the petitioner association are not involved in the process of manufacture of any product as defined under the Textiles Committee Act (in short "the Act") and they have not been hitherto required to pay any Cess or other duty under the Act and that being the case, some of the members of the petitioner association have received demand notices for the years 2000-2001 and 2001-2002 from the first respondent stating that they are manufacturers of textiles as defined under the Act and as such, they are liable to pay Cess calculated at the rate of 0.05% and also calling upon them to furnish monthly returns in Form A as required under Rule 4 of the Textiles Committee Rules, 1975 (in short "the Rules") for the entire labour ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been hitherto levied since 1975 and if levied, it would eat away a substantial portion of the income of the members thereby putting them to a great hardship which they cannot pass on to their customers. 4. The respondents have filed their counter and their case is as under: (a) Since the definition of the term "manufacturer" has not been defined, the processors were clarified their status as "manufacturer", taking into account the decision of Supreme Court in the case of Sirsilk vs. Textiles Committee and Others reported in (AIR 1989 SC 317) and as per that judgment, any industry engaged in manufacture or production of any articles mentioned in first schedule of the IDR Act 1951 is brought within the provisions of the said enactment. The IDR Act, 1951, clearly contemplates a processing house as an industry and the said Act is Pari Materia. This being the case, the processor can be said manufacturer for the purposes of the Textiles Committee Act, 1963. As such, processors are liable to pay cess under the Textiles Committee Act, 1963. (b) The respondents had taken up the assessment of members of the petitioner association and since the members failed to submit their retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner is having an effective alternative remedy by way of appeal before the appellate authority and further appeal before the Tribunal and these writ petitions could not have been entertained, if this objection, regarding the maintainability was raised and brought to the notice of this court, when these writ petitions came up for admission or immediately thereafter. However, it is seen from the records that some of the writ petitions in this batch, have been entertained by this court in the year 1989 and they are pending for nearly five years. The counter-affidavits in these writ petitions have been filed before this Court only on November 28, 1994, when these writ petitions were taken up for final hearing, raising the contentions that the petitioner is having an alternative remedy and that the writ petitions are liable to be dismissed on that ground. However, as the writ petitions have been admitted and kept pending before this Court all these years, we are of the view that it is not proper to dismiss these writ petitions, at this stage, on the ground that the petitioner has not exhausted the alternative remedy. Inasmuch as these cases involve interpretation of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he counsel for the first respondent has relied on a judgment of the Supreme Court reported in 1997 (92) E.L.T. 19 (S.C.) = 1997 STC (Vol.105) 318 in the matter of State of Goa and others vs. Leukoplast (India) Ltd. (paras 13 and 14) ".........These are basically questions of fact. There was no reason for the assessee-company to by-pass the statutory remedy and come to the court with a writ petition. These questions basically of fact should be agitated before the statutory appellate authority. We are of the view that the assessee should not have been allowed to by-pass the statutory remedies where the questions of fact could have been properly agitated and ascertained." 12. Before proceeding to analyse the merits of the case, it has to be decided whether the writ petition itself is maintainable when the petitioner association has approached this Court without exhausting the alternative remedy available to it under 5A(7) of the Act. Though the counsel for the petitioner has placed reliance on the judgments reported in 1999 ITR (Vol.237) 299 and 1995 ITR (Vol. 213) 639 (supra) to substantiate his contention that this writ petition should not be dismissed on the ground of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to redress its grievance. It is also made clear that except the question of alternative remedy, the other issues in this writ petition are left open. 14. In fine, the writ petition stands disposed of by directing the petitioner to exhaust the appeal remedy and for the same, the period of pendency of the writ petition before this Court may be excluded. No costs. Consequently, connected W.P.M.P. is closed. Before parting with this decision, this Court points out that even in the case reported in AIR 1997 Delhi 383 (supra), the Delhi High Court, while deciding the issue involved, has expressed that there is no definition for the word "manufacture" in the Act. For quite a long time, this issue has been posing problem to the Courts while deciding whether a particular process comes under the ambit of the word "manufacture" or not. Since the word "manufacture" has not been defined in the Act, the Courts are constrained to refer to other parallel enactments to come to a conclusion. This situation can be avoided if the word "manufacture" is defined in the Act. Therefore, it is very much necessary for the Union of India to define the word "manufacture" thereby avoiding complicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
