TMI Blog1990 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioners pray that the Petitioners may be deemed to have been granted the licence by the 4th Respondent, in view of the fact that the application for such a licence had been made as far back as in 1982 and the Respondents had acknowledged receipt of the Petitioners' application. By an amended prayer, the Petitioners have prayed for the refund of an amount of Rs. 9,93,637.39 together with interest from the date of payment made by the Petitioners till the date of refund by the Respondents. 2. By an Agreement dated 1-3-1982 between M/s. Jalan Dyeing and Bleaching Mills and M/s. Supra Dye Chem of which one P. Murarka was the sole proprietor, the plant and machinery for manufacturing textile binders was leased by M/s. Jalan Dyeing and Ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund the amount of excise duty. On 25-9-1986, the Collector of Central Excise searched the Petitioners' factory premises and seized certain goods and records. On 5-11-1986, the Respondents addressed a show-cause notice dated 4-11-1986 to the Petitioners under which the Petitioners, along with three other concerns, were called upon to show cause why duty to the tune of Rs. 8,08,568.82 should not be levied and recovered under Rule 9(2) of the Central Excise Rules, 1944 and under Section 11A of the Central Excises and Salt Act, 1944. The Respondents also called upon the Petitioners to show cause why penalty should not be imposed on them under Rule 9(2) and/or 52A and/or 173Q and/or 226 of the Central Excise Rules, 1944 for carrying on product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tia contended that in view of the fact that the Petitioners' Appeal was pending before the Appellate Tribunal, the present Petition was not maintainable. In support of his submission, Shri Bhatia has relied on a ruling of the Division Bench of this Court in the case of Garware Plastics and Polyester Ltd. v. Union of India, 1986 (24) E.L.T. 449 to the effect :- "Our Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others - 1985 (19) E.L.T. 22 repeated the admonition that Article 226 is not meant to short circuit or circumvent statutory procedures. Exceptions have been carved out, namely, that where statutory remedies are entirely ill-suited to meet the demands of extraordinary situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned and it was on those facts that the Division Bench had ruled that if an alternative remedy was available, then a Writ Petition was not maintainable. In the present Petition the issue was with regard to the refund of the duty paid by the Petitioners under protest. Hence the Petition was maintainable. 8. Now, it appears to me that the submission made by Shri Doctor cannot be sustained for the reason that the show-cause notice and the proceedings before the Collector of Central Excise involved an issue whether the Petitioner-firm was one of the three bogus firms which had been brought into existence by M/s. Jalan Dyeing and Bleaching Mills. That issue was answered in the affirmative by the Collector of Central Excise by his Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Interim Order passed by this Court in terms of prayer (d). Further, to permit the Petitioners to clear the goods on payment of duty after dismissing the Petition would mean that the Petitioners would be allowed to carry on the business without obtaining the licence from the appropriate Authority. For these reasons, I am unable to accede to the prayer of Shri Doctor for allowing the Petitioners to continue to clear the goods on payment of duty under protest. 11. With regard to the alternate prayer of Shri Doctor that the Petition be adjourned till after the disposal of the Appeal pending before the Tribunal, I see no reason for adjourning the matter after the same has been argued exhaustively by both learned Counsel. 12. Shri Docto ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
