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TMI Blog1988 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture and sale of Allopathic and Ayurvedic medicines and toilet preparations. It is contended that in some medicines, alcohol is used and for the manufacture of such medicines, licence has been obtained from the State Excise Authorities. Other medicines and cosmetics are said to have been manufactured under provisions of the Central Excises and Salt Act, 1944 (briefly the Act, 1944). In these writ petitions, relevant preparation is "Homeodent" tooth-paste being manufactured by M/s. Dabur. The contention of the petitioners is that the Homeodent does not contain alcohol, though one of the ingredients of such preparation is mother-tincture containing alcohol and the same is assessable under Item 14FF of the Act, 1944. The Assistant Collector, Central Excise, Ghaziabad took the view that the Homeodent was classifiable under sub-heading No. 3206.20 of Chapter 32 of the Central Excise Tariff Act, 1985 and on that, duty at the rate of 15% ad valorem was leviable. The duty computed at the said rate by the Central Excise authorities was paid by the petitioners on the goods manufactured from 11-1-1985. On 18-1-1988, the District Excise Officer made a surprise inspection of the units of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition No. 1160 of 1988). 3. Pursuant to the order of the Central Government, the District Excise Officer issued the impugned show cause notice dated 2-11-1988 to the petitioners jointly, validity of which has been challenged by them in their writ petition and another writ petition has been filed by M/s. Sharda only to challenge the order of the Central Government refusing to entertain its revision. 4. It is made clear at the very outset that the petitioners have not advanced any argument as the merits of the question whether Homeodent tooth paste is assessable to duty under the Act, 1944 or under the Act, 1955 and rightly as because that involves factual scrutiny which can hardly be gone into by this Court under Article 226 of the Constitution of India. The question whether Homeodent tooth-paste is same alcohol, cannot be adjudicated upon under the extraordinary writ jurisdiction. 5. Learned counsel for the parties were heard by us at some length. Sri Rajendra Sachar, learned counsel for M/s. Dabur made two submissions (1) that the Central Government having set aside the order passed by the District Excise Officer, Ghaziabad whereunder excise duty to the tune of Rs. 95,66,451 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities to refund the amount paid by the petitioners and we, therefore, do not see substance in the submission of Sri Sachar that the Central Government having directed the Excise Authority to adjudicate the whole matter de novo, the Excise Authorities under the Act, 1955, have not been rendered absolutely incompetent to retain the amount, already paid by the petitioners. The liability of payment of excise duty stems from the charging Section 3 of the Act, 1955 and it does not emerge from the demand notice dated 17th March, 1988 (Annexure 7 to the writ petition of M/s. Dabur). Therefore, it cannot be said that after the order of the respondent No. 1 having been set aside by the Central Government, the basis or the foundation of the demand of excise duty has disappeared or thereafter the duty levied under the Act, 1955 was wiped of. 7. Then the question is whether the writ petitions raise any jurisdictional issue. Sri Sachar submitted that any demand for the period anterior to six months from the date of the payment of duty is barred by limitation under Rule 11 of the Rules, 1956 and, therefore, no jurisdiction is vested in the respondents to demand the duty which is barred by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g already been paid under the Act, 1944 right from the beginning, the recovery of duty under the Act, 1955 and the Rules, 1956 amounts to double taxation which is prohibited by the fiscal laws. He then argued that the Central Excise Authorities having concluded that the preparation in question was assessable to duty under the Act, 1944, the State Excise Authorities have no jurisdiction to review the decision of Central Excise Authorities. So far as M/s. Sharda is concerned at the very outset we would like to observe that no refund in any case can be ordered in its favour for the simple reason that the amount sought to be refunded was not paid by it but by M/s. Dabur only. It is noteworthy that vires of the provisions of the Act, 1955 or the Rules, 1956 has not been challenged in the instant petitions and therefore, we refrain from going into the question whether the levy at the rate of 100% ad valorem is unconstitutional. 10. It is not the stand of the authorities that the Homeodent tooth-paste is liable to duty under both the Acts of 1944 and 1955. The matter is sub judice and when the claim of the petitioners that the Homeodent is assessable to duty only under the Act, 1944, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties who remain sitting on the fence and take a chance of the proceedings taken up under the statutory provisions being gone in their favour. The petitioner who resorted to statutory remedies on their own, cannot be permitted to take recourse to Article 226 of the Constitution of India in the event of their not having become successful under the former. 14. Then, we come to the other petition of M/s. Sharda being writ petition No. 1160 of 1988 wherein the order of the Central Government refusing to entertain the revision of M/s. Sharda has been challenged. The Central Government refused to entertain the revision of M/s. Sharda on the sole ground that right of appeal that vested in M/s. Sharda could be exercised thereby. Sri Ravi Kiran Jain appearing in this writ petition for M/s. Sharda submitted that filing of appeal would have made no difference because the appeal of M/s. Dabur which squarely covered the same point, was dismissed by the Excise Commissioner. This argument does not impress us. No doubt, the case of M/s. Dabur is that it has been manufacturing the Homeodent tooth-paste on job basis under the loan licence of M/s. Sharda under the specification and control and with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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