Sukhjit Starch and Chem. Ltd. vs Supdt., C. Ex., Range-II, Phagwara.

In this application, prayer made is to dismiss the writ petition as being not maintainable because the petitioner has not exhausted the alternative remedy of appeal provided under the Central Excise and Customs Act.

It is not in dispute that vide order dated 17-1-1992 (Annexure P6), petitioner was called upon to show cause by the Assistant Collector, Central Excise Division, Jalandhar, as to why the amount of Rs. 4.455/- (BED Rs. 4,050/- plus SED Rs. 405/-), should not be recovered from them u/s 11A of the Central Excise and Salt Act, 1944. Vide said notice petitioner was directed to produce all evidence documentary or otherwise upon which they intend to rely upon in support of their defence at the time of showing cause. Petitioner was also directed to indicate in its written explanation as to whether they wish to be heard in person or through their authorised representatives before the case is adjourned. Petitioner instead of submitting its reply or evidence, has filed the present writ petition. It is contended by the learned counsel for the respondent that the writ petition is premature as the petitioner has not exhausted alternative remedy of appeal under the Central Excise Act. I find force in the contention raised by the learned counsel for the respondents. In the case of Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , their Lordships of the Supreme Court held :-

"Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioner have the right to prefer an appeal before the prescribed authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court u/s 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution."

Likewise in State of Goa and others Vs. Leukoplast (India) Ltd. etc., , their Lordships of the Supreme Court said that the assessee should not be allowed to bye-pass the Statutory remedies where the question of fact would have been properly agitated and asserted.

In the present case, petitioner has come to this Court at the stage when only a show cause notice has been issued to it. Petitioner ought to have given reply to the show cause notice and in case the same is decided against the petitioner, it has a right to file an appeal before the Commissioner, Central Excise. Since vide show cause notice, 30 days were given to file reply and the time given has expired, petitioner, if so advised, may file reply within two months from today and on receipt of reply, the appropriate authority shall pass a speaking order. The appropriate authority shall take into consideration the judgment of the Hon''ble Supreme Court cited by the petitioner in its reply to the show cause notice. Till such time order is passed, recovery shall not be effected against the petitioner.

The writ petition as well as C.M. shall stand dismissed of in the terms indicated above.