Munak Engineers (Pvt.) Ltd. vs Cce, Chandigarh

In this application, prayer made by the respondent is to dismiss CWP No. 8498 of 1990 being not maintainable because the petitioner has not exhausted the alternative remedy of appeal.

Petitioner filed writ petition under article 226 of the Constitution for quashing show cause notice, Annexure P-6. Vide notice dated 15.5.1990, Annexure P-6, the Additional Collector, Central Excise, Chandigarh called upon the petitioner to show cause within 30 days of the receipt of the notice as to why Central Excise Duty amounting to Rs. 95,759/- be not demanded from them on the ground of suppression of facts regarding manufacture of certain items with an intention to evade Central Excise duty leviable thereon. The case of the petitioner as set out in the writ petition is that the demand raised by the respondent for pre-fabricated RCC roof slabs, doors, windows, glassing frames, rolling shutters and louvers of steel and steel structures like trusses, girders etc. was illegal. Petitioner has contended that since excise duty can only be levied on goods which are manufactured and are movable and marketable, demand itself is without jurisdiction. It is contended that the writ petition is not premature inasmuch as demand raised by the respondent is patently illegal and can be challenged by filing writ petition. Learned counsel also made a reference to Jindal Strips Limited and Another v. State of Haryana and Others (1996) 100 STC 457 to contend that where a writ petition is pending for a number of years, party cannot be compelled to go before the Authorities even where the statute provides an alternative remedy.

There is no dispute with the law laid down in Jindal Strips case (supra). However, the case cited by the learned counsel is not applicable to the facts of the present case. In the present case, the question involved is as to whether the petitioner is engaged in the fabrication of RCC roof slabs, window and door frames, and steel structures like trusses, girders, louvers, glazing frames and parts thereof or whether the items manufactured by the petitioner are sold. Another question which is required to be determined is whether the aforesaid items manufactured are fabricated and assembled at their proper place. All these questions are questions of fact and cannot be determined in a petition under article 226 of the Constitution of India. Petitioner came to this Court at a stage when only a show cause notice had been issued to it and the facts set out in the writ petition had not been brought to the notice of the Assessing Authority. It has been repeatedly held by the Apex Court that where the Act provides for complete machinery to challenge an order of assessment, then instead of seeking remedy by way of a petition under article 226 of the Constitution, the person aggrieved must avail the remedy provided by the statute. Reference in this regard may be made to Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, and State of Goa and others Vs. Leukoplast (India) Ltd. etc., .

In this case, it is not in dispute that the Assessing Authority is yet to apply its mind to the case on the basis of reply, if any, filed by the petitioner. In my view, the application filed by the respondent to dismiss the writ petition as premature, deserves to be allowed and it is so ordered. Accordingly, C.W.P. No. 8498 of 1990 shall stand dismissed as premature. It is, however, ordered that in case the petitioner files reply to show cause notice Annexure P-6 within 45 days from today, the same shall be entertained and the objection with regard to limitation shall not be raised. Till such time the matter is finally decided by the Assessing Authority, no action against the petitioner shall be taken.

No costs.