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TMI Blog2007 (12) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... said order is put in issue in this appeal. 4.Mr. Sriram Panchu, learned Senior Counsel appearing for the appellant has contended that whether the process of cropping of grey fabrics would amount to manufacture for the purpose of Section 2(f) of the Central Excise Act, 1944 was settled by the Supreme Court in the case of Mafatlal Fine Spinning and Manufacturing Company Limited v. The Collector of Central Excise reported in 1989 (40) E.L.T. 218 to the effect that "calendaring" and "shearing" did not cease to be unprocessed fabric and thereby did not amount to manufacture, when the issue has been thus settled by the Supreme Court, the learned Judge was not correct in relegating the appellant to go before the authorities concerned by way of filing reply to the show cause notice. He further contended that the notification issued under Section 5A of the Central Excise Act, 1944 could never govern the charging Section - Section 3 and in the light of the categoric exposition of law by the Supreme Court as aforesaid in 1989 (40) E.L.T. 218 and 2006 (203) E.L.T. 179 (S.C.), the single Judge should have prohibited the respondents from proceeding further. 5.Per contra, the learned Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13/2001 dated 3-7-2001 issued by the Deputy Commissioner of Central Excise, Madurai. The show cause notice proceeded that the appellant have contravened the provisions of Central Excise Act, 1944, and the Central Excise Rules, 1944, and the contraventions were stated as follows : Rule 173B of the Central Excise Rules in as much as the appellant have mis-declared the cropped fabrics as unprocessed fabrics in order to avail exemption from payment of Central Excise Duties; Rule 53 of Central Excise Rules in as much as the appellant have not kept the daily stock account of dutiable cropped fabrics in their RG-1 records properly; Rule 54 of Central Excise Rules in as much as the appellant have not furnished the details of the manufacture of cropped fabrics in the RT-12 returns submitted; Rule 9(1) of Central Excise Rules with Rule 49(1) ibid, in as much as the excisable goods were cleared without payment of appropriate duty; Rule 173F of Central Excise Rules inasmuch as duty liability was not determined and paid on the excisable goods removed and Rule 173G of Central Excise Rules in as much as the appellant have not followed the procedures prescribed therein and not produced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; (unprocessed) cotton-fabric. From that, it is evident that as against an adjudicated order, by placing all factual matters before the adjudicating authority, an appeal was filed before the Customs, Excise & Gold (Control) Appellate Tribunal and the Customs, Excise & Gold (Control) Appellate tribunal has passed an order on the basis of the material against the assessee therein, which was taken on appeal under Section 35L of the Central Excises and Salt Act to the Supreme Court. Likewise, the case of Indore Wire Company Limited v. Union of India reported in 2006 (203) E.L.T. 179 (S.C.) was also one arising out of the original order passed by the authorities and the ultimate order of the Customs, Excise & Gold (Control) Appellate Tribunal on the applicability of the Tariff Item Nos. 26AA(1a) or 33B of the Central Excise and salt Act, 1944 in regard to the goods manufactured by appellant, the correctness of which has been questioned before High Court by way or writ. 10.It is not the case, rather it cannot be the case of the appellant that the respondent, who is exercising the power under the Central Excise Act, has denuded of his jurisdiction or he has no jurisdiction to issue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot stop him from making such enquiries. Mr. sorabjee, appearing on behalf of the respondents, has5. complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues, whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to Assistant Collector about the manner and mode in which the assessment should be made. 6. we are of the view that the High Court was in error in entertaining this writ petition. Therefore, the appeal is allowed and the judgment of the High Court under appeal is set aside. There will be no order as to costs." 12.In the show cause notice dated 3-7-2001, number of violations have been catalogued to the effect that the appellant has violated the same. These are the factual issues and they could very well be settled with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amilnadu State Transport Corporation v. C. Durai and another, (2005 WRIT L.R. 136), has held that no writ petition should ordinarily be entertained when there was an alternative remedy except in very rare cases if there is some compelling reason to do so. Even if there was violation of natural justice or the order was without jurisdiction, the writ petition could still be dismissed if there was an alternative remedy, in the said judgment, the decision of the Supreme Court in U.P. State Bridge Corporation Limited v. U.P. Rajya Setu Nigam Karmachari Sangh - (1998) 4 S.C.C. 268 was relied on wherein the Supreme Court has held that if there was a specific remedy available under a statute a writ petition should not be entertained. 16.In L.K. Verma v. H.M.T. Limited and another, (2006 (2) SCALE 90), the Supreme Court held that except in cases, where the Court or Tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the act was in question, the court shall not exercise its jurisdiction under Article 226 to test the correctness of the show cause notice, particularly, when factual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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