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2003 Supreme(All) 1252
IN THE HIGH COURT OF ALLAHABAD
R. B. Misra, J.
UNION OF INDIA - Appellant
Versus
BALRAMPUR CHINI MILLS LTD. , CEGAT - Respondents
Civil Misc. Writ Petition 244 Of 2002
Decided On : 05/23/2003
Bharat Ji Agrawal, Piyush Agrawal, S.N.SRIVASTAVA, SUBODH KUMAR
The main legal point established in the judgment is that the existence of an alternative remedy of reference under Section 35-H of the Central Excise Act does not bar the petitioner from filing a writ petition if there is a violation of fundamental rights, principles of natural justice, or if the order or proceedings are wholly without jurisdiction.
Headnote:
Central Excise - Common Registration - Section 35 (c) (1) of the Central Excise Act 1945 - Notification No. 35/2001-CE (NT) dated 26. 6. 2001 - Trade Notice No. 98-CE/94 dated 28. 9. 94
Fact of the Case:
The petitioner filed a writ petition under Article 226 of the Constitution of India against the judgment and order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, allowing the appeal and directing the issuance of a common central registration or transfer of credit from one division to another. The petitioner had two manufacturing divisions, one for sugar and molasses and the other for industrial and potable alcohol. The Commissioner of Central Excise rejected the application for common registration, citing the decision of the Bombay High Court in a similar case. The respondent company appealed against this decision, arguing that the two divisions were part of the same factory and should have a common registration. The Tribunal allowed the appeal and directed the Commissioner to issue central registration to the respondent company for both divisions.
Finding of the Court:
The court found that the Commissioner's decision to reject the application for common registration was erroneous in law as it did not consider the relevant trade notice. The court also noted that the two divisions were situated in the same area, maintained common records for income tax and sales tax assessments, and were administered by a common board of directors. The court held that the Trade Notice clearly laid down that two sections or departments of the same manufacturer in the same premises separated only by a road are entitled to single central excise registration.
Issues: The issues involved in the case were the rejection of the application for common registration by the Commissioner of Central Excise, the applicability of the relevant trade notice, and the entitlement of the two divisions to single central excise registration.
Ratio Decidendi: The court held that the Commissioner's decision was erroneous in law as it did not consider the relevant trade notice, which clearly allowed for single central excise registration for two sections or departments of the same manufacturer in the same premises separated only by a road. The court also emphasized that the existence of an alternative remedy of reference under Section 35-H of the Central Excise Act did not bar the petitioner from filing the writ petition.
Final Decision: The court dismissed the writ petition, stating that the petitioner cannot pursue two parallel remedies in respect of the same matter at the same time. The court held that the petitioner had already filed a reference application under Section 35-H of the Central Excise Act, and therefore, the writ petition was not maintainable.
( 1 ) THIS Writ petition has been preferred under Article 226 of the Constitution of India against the judgment and order dated 5. 12. 2001 passed by respondent No. 2 The Customs, Excise and Cold (Control) Appellant Tribunal, New Delhi under Section 35 (c) (1) of the Central Excise Act 1945 (in short called act) allowing the appeal directing both the divisions for a common central registration or transfer of the credit from distillery division to the Sugar Division by setting aside the order passed by the Commissioner Central Excise. Heard Sri Subodh Kumar, learned counsel for the petitioner as well as Sri Bharat Ji Agrawal, learned Senior Advocate alongwith Sri Piyush Agrawal, learned counsel for the respondents.
( 2 ) THE facts necessary for adjudication of the present writ petition are that the appellant company has two manufacturing Divisions, one of them manufacturing Sugar and Molasses and the other manufacturing Industrial and potable Alcohol. The Sugar Division and the Chemical (Distillery)Division are located across a public road. They have separate Central Excise registration and are maintaining separate statutory records. The respondent wanted to have a common registration for the two divisions and, accordingly, applied to the jurisdictional commissioner of Central Excise. The Commissioner, after enquiries conducted through his subordinate officers, rejected the application. The decision of the Commissioner was ultimately communicated to the respondent company by the jurisdictional Assistant Commissioner by letter dated 24. 8. 2001 which was accompanied by a copy of letter dated 22. 8. 2001 of the Additional Commissioner (Tech ). of central Excise addressed to the Assistant Commissioner. The two letters, read together, communicated to the respondent comp. That their application for common registration had been rejected by the commissioner on the ground that the appellants two divisions could not be considered to be situated in the same place of business and, therefore, a common registration would not be granted in view of the decision of the Bombay High Court in the case of Jenson and nicholson (India) Ltd. v. Union of India (1981) ELT 128 (Bom ).
( 3 ) THE appeal before the Tribunal was preferred against the above order dated 24. 8. 2001.
( 4 ) IN the appeal of memorandum, the respondent Company have stated that the Sugar Division and the Chemical (Distillery) division are two parts of the same factory situate in the same place. The two are separated only by a road. The by-products of the Sugar Division, which are inputs for the Chemicals Division, are supplied from the former division to the latter directly through overhead conveyor belts. Common balance sheet and other accounting records are maintained for the two divisions. The Income Tax assessment and the sales tax assessment are also common for the divisions. It was for avoiding the inconvenience of maintaining voluminous separate records and of filing separate returns for Central Excise purposes that the appellants applied for a single registration for the two Divisions. The respondent company have further stated that the assistant Commissioner forwarded their application to the Commissioner suggesting in his covering letter that the request of the party was liable to be rejected in view of an earlier order passed in a similar case of M/s K. M. Sugar Mills, Moti Nagar, The respondent has further pointed out that the said order of the Commissioner rejecting the request of M/s K. M. Sugar mills for single registration has been set aside by the Tribunal as per order dated 3. 9. 2001. The respondent company also relied on Notification No. 35/2001-CE (NT) dated 26. 6. 2001 issued by the CBEC under Rule 9 (2) of the Central Excise (No. 2) Rules 2001, where under the Board has provided that if two or more premises of the same factory are separated by public road, railway line or canal, the commissioner of Central Excise may, subject to proper accoun
