The court emphasized that the classification of goods is a question of fact to be adjudicated by the authority under the Act, and also considered the petitioner's request to deposit the duty amount in easy installments.

A.K. Mathur, J.-Petitioner by this writ petition has prayed that the order passed by the Superintendent (Central Excise & Customs) Range Jodhpur dated 17-9-1984 (Annexure- 2) and the remarks of the Superintendent (Central Excise & Customs) on the classification list Annexure-2A may be quashed and it is prayed that petitioner may be permitted to clear his goods.

2. The petitioner is a private limited Company and deals with the purchase of vegetable and non-essential oils (UNE) from various crushing Units and manufactures such oil in his factory situated at II Basni Jodhpur. The petitioner obtained a licence under the Central Excises and Salt Act, 1944 (hereinafter referred to Act) and the Central Excise Rules, 1944 (hereinafter referred to Rules). Petitioner submitted a classification list on 1-9-1984 before the non-petitioner and it was clearly stated that the refining of oil from different crushing units did not involve any manufacturing activity. The Superintendent (Central Excise and Customs) Respondent No. 1 without affording any opportunity to the petitioner by his letter dated 17th September, 1984 returned the classification list of the petitioner with the remark that- “B.E.D. 100 Rs. Tariff rate per M.T. S.E.D. 5% of the B.D.E. 1 10/84-C.E., dated 11-5-1984”. and he further called upon him to file the fresh classification list showing the appropriate tariff rate of duty. Aggrieved against this order, petitioner has approached this Court by filing the present writ petition.

3. Mr. Lodha learned Counsel for the Respondents submitted that in the similar situation, the Division Bench at Jaipur has remanded the matter back to the Collector, Central Excise and Customs to decide the matter in accordance with law (Bhawani Vanaspati Udyog Pvt. Ltd. vs. Union of India & Ors.,) D.B. Civil Writ Petition 4300/89, decided on 24-8-1990. It was observed as under: -“This Court, under Article 226 of the Constitution, does not grant any declaration. It issues writ of certiorari or mandamus, as the facts of the case may require. However, without going further into the matter, it appears to us that the petitioner has since made two representations to the Collector disputing his liability to pay excise duty, the Collector may dispose of the same. We wish to make it clear that we have not decided the controversy in question either in favour or against the petitioner. We must mention that the learned Counsel for the petitioner did lay emphasis on Collector of Central Excise vs. Jayant Oil Mills Pvt. Ltd. and Central Excise vs. Karan Spinning Mills. Empire Industries Ltd. vs. Union of India [1985 (3) SCC 314] has been referred by the Supreme Court in Ujagar Prints & Ors., vs. Union of India and Ors, (1989) 3 SCC 488, Counsel for the excise urged that the law laid down in Empire Industries Limited case (Supra) should decide the rights of the parties. The Collector would be entitled to go into this question also while examining the facts and recording a finding on the point.”

4. I have heard learned Counsel and perused the record.

5. It is true that so far as question of classification is concerned, it is essentially a question of fact and that has to be first adjudicated by the authority under the Act. Therefore, in view of the decision given by Division Bench Jaipur, I direct that the petitioner shall appear before the Assistant Collector, Central Excise to decide the classification of the petitioner after hearing him without prejudice to the observations made by the Superintendent, Central Excise and Customs. Petitioner shall appear before him on 11-2-199 1 and the Assistant Collector, Customs shall decide the matter in accordance with law within a period of 10 days, thereafter.

6. Thenext question is regarding the amount which has already been adjudicated. Mr. Lodha submits that the amount of the duty adjudicated has not been paid by the petitioner and that comes to Rs. 40,47,477.75P. (Rupees forty lacs forty-seven thousand four hund