Sukhjit Starch and Chemicals Ltd. vs Supdt., Cen. Ex., Range-ii, Phagwara and Another

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

Vide three show cause notices dated 17.6.1992, 5.11.1992 and 23.3.1993, petitioner Company was called upon to show cause by the Assistant Collector, Central Excise, Jalandhar as to why amount mentioned in the said notices be not recovered from it u/s 11A of the Central Excise and Salt Act, 1944. Vide said notices, petitioner was directed to produce all evidence, documentary or otherwise, upon which it intended to rely upon in support of its defence at the time of showing cause. Petitioner was also directed to indicate in its written explanation as to whether it wished to be heard in person or through authorised representative before the case is adjudicated so that date and time may be fixed for the said purpose. It appears that the petitioner filed reply to the show cause notice but before the matter could be adjudicated, petitioner filed the present writ petition.

It is contended by the learned counsel for the respondents that the writ petition is premature as the petitioner has not exhausted the alternative remedy of appeal under the Central Excise Act. I find force in this contention of 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 as under :-

"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 petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of S. 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 S. 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 under 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 Art. 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 bypass 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 show cause notices have been issued to it. Petitioner ought to have given reply to the show cause notices and in case the same is decided against the petitioner, it has a right to file appeal before the Commissioner, Central Excise. Since further proceedings were stayed at the time of motion hearing, petitioner may, if so advised, file reply, if any, to the show cause notices within two months from today and on receipt of the reply, the appropriate authority is directed to pass a speaking order. Till such time, order is passed by the appropriate authority, recovery, if any, shall remain stayed.

With the aforesaid directions, the writ petition as well civil miscellaneous application stand disposed of.