Madras High Court
Tube Investments Of India Limited vs The Assistant Collector Of Central ... on 9 December, 1992
Equivalent citations: 1993(42)ECC181
ORDER Srinivasan, J.
1. The question which is raised by learned Counsel for the petitioner is that the demand is barred by limitation under Section 11-A of the Central Excises and Salt Act. The question turns on the interpretation of the section. Learned Counsel also refers to the facts of the case and submits that the assessment in this case cannot be said to be provisional within the meaning of Sub-section (3)(S)(bt) of Section 11-A of the Act. It is a question which will depend upon the facts of the case and the construction of the section. Admittedly, an appeal lies against the impugned order of the Collector (Appeals) to the Tribunal.
2. Learned counsel for the petitioner submits that the Tribunal has not been taking a uniform view with regard to the interpretation of Rule 9-B of the Central Excise Rules, 1944. It is stated in the affidavit that the Special Bench at Delhi has held in one case that if the clearance is provisional for one respect, it is provisional for all respects. It is further stated that the same Bench in another case has held that if there is a clearance provisional for one purpose, it cannot be provisional for any othcr purpose. It is also averred in the affidavit that the Southern Regional Bench in CCE v. Indian Tyre & Rubber 33 ELT 613 (T) has referred the case under Section 35-G of the Act to this Court. A copy of the reference has been produced. It is seen-therefrom that the question referred to this Court is, When a provisional assessment is made under rule 9-B of the Central Excise Rules, 1944 on any of the permissible ground(s) allowed thereunder, is it lawful to hold that the assessment as a whole is provisional so as to save a claim for refund on a different ground from the operation of time-bar, or whether the provisionality is restricted to the only ground(s) on the basis of which provisional assessment was initially resorted to?
3. Just because a reference is made on the question whether provisional assessment for one purpose will be provisional for all purposes, it cannot be contended that the remedy by way of statutory appeal is illusory or ineffective. When there is a clear statutory alternative remedy available, it is for the petitioner to avail of the same and not to resort to Article 226 of the Constitution of India. The Supreme Court has recently pointed out in Shyam Kishore v. Municipal Corporation of Delhi that whenever a statutory remedy is provided which will effectively deal with the matter, it is not open to this Court to entertain petitions under Article 226 of the Constitution of India.
4. In that view, I refuse to entertain this Writ Petition and dismiss the same. It is open to the petitioner to approach the Tribunal and raise all the contentions available to him under the law.
5. Learned Counsel for the petitioner prays for stay of recovery proceedings till the appeal is filed by the petitioner herein before the appropriate authority. I directed the petitioner to issue notice to the Standing Counsel for the respondents and Mr. V.T. Gopalan, Senior Central Government Standing Counsel, appeared for the respondents. After hearing him, I grant stay of recovery proceedings for the collection of the amount set out in the petition pursuant to the order dated 25.1.1992 in C.No. IV/16/123/90(T) for a period of one week i.e., till 16.12.1992. The Writ Petition is dismissed with the above observation. There will be no order as to costs.