Tyre warps are excisable under Item 18 and not under Item 22.

( 1 ) THIS writ petition was dismissed as infructuous on 5th July, 2001. An application for recalling of the said order has since been filed. After hearing Mr. Chowdhury and Mr. Samaddar, learned Counsel appearing on behalf of the parties, it appears that the writ petition has not become infructuous. Accordingly, the order dated 5th of July, 2001 is hereby recalled.

( 2 ) AFTER the above order was passed, by consent of parties, the writ petition is treated as on day's List and is taken up for hearing. Both the learned Counsel have addressed the Court on merits.

( 3 ) THE bone of contention in the present writ petition is as to whether tyre warps would be excisable under Item 18 or under Item 22. In the present case the tyre warps have been sought to be included in Item 22 and accordingly, a demand was levied on the petitioner. In the ensued proceeding petitioner had participated in the hearing and before any order was passed this writ petition was moved and certain interim orders were obtained. However, there was no interim order restraining the authorities from passing order in the proceedings, the hearing of which was concluded. Be that as it may, the learned Counsel for the respondents Mr. Samaddar has no instruction with regard to the outcome of the proceedings. However, Mr. Chowdhury submits on instruction that no order has since been passed even after closure of the hearing and though there was no interim order restraining the passing of such order.

( 4 ) MR. Samaddar had taken a preliminary objection as to the maintainability of the writ petition on the ground that the petitioner having participated in the proceedings till conclusion of hearing, he could not have pursued a parallel proceeding in this writ jurisdiction. Therefore, this petition should be dismissed. Only after an order is passed in the proceedings, if it is adverse, then, the petitioner could be at liberty to challenge the same. According to him, it is not known that whether the order that would be passed would be adverse to the petitioner or not.

( 5 ) MR. Chowdhury, however, contended that since the writ petition is pending for almost seventeen years and that the matter is already concluded in an earlier proceedings between the parties wherein tyre warps were held to be yarn by the learned single Judge which was affirmed by the Division Bench in Collector of Central Excise, Calcutta and Ors. v. Madura Coats Ltd. , Serampore, 1982 (10) E. L. T. 129 (Calcutta), the special leave petition against which was not admitted. Therefore, this question is no more open to be agitated in between the parties though might be for subsequent years in view of the decision in the case of Chiranji Lal Ramji Doss v. Income-Tax Officer, Central Circle XIV, New Delhi and Ors. , reported in 1978 (115) I. T. R. 842.

( 6 ) IN elaborating his submission, Mr. Chowdhury had pointed out that tyre warps are held yarns in a particular pattern which is used for manufacture of tyres and at the time of such manufacture the cotton threads that hold the yarns are destroyed. Therefore, it was something other than tyre fabric. Then again, this very question was decided in between the parties in the earlier proceedings. Therefore, it falls under Item 18 and not under Item 22. Therefore, this writ petition should be allowed. He then contends that the authority was free to pass an order and if it had passed the order, the same could have been challenged in this petition but even in the absence of any interim order the authority had chosen not to pass the order after long 17 years and thereby it deprived the petitioner of any liberty to challenge the said order in the present proceeding. In view of the delay that has been sought, this petition should not be thrown out on the preliminary objection of Mr. Samaddar.

( 7 ) I have heard the respective submissions of the learned Counsel at length.

( 8 ) IN the decision in the case of Madura Coats Ltd (supra) this Court had