Eff Aar Fabrications vs Union of India

The above writ petitions can be dealt with together since they are directed against an action proposed to be taken under the same notice dated

31-3-1989 except that the petitioner in one is by the Fabricator and the other is the owner of the lorry which was found transporting the goods in

question.

The relief sought for in W.P. No. 5760 of 1989 is for a writ of mandamus directing the second respondent to forbear from implementing the

proposals under the provisions of the Central Excise Act, 1944 as contained in the notice of the further respondent in his C. No.

V/Ch.73/15/2/88-Cx. Adj. dated 31-3-1989 in any manner whatever against or with reference to the petitioner. The relief sought for in W.P. No.

5761 of 1989 is for a writ of mandamus directing the respondent to forbear from implementing the proposals under the provisions of the Central

Excise Act, 1944 as contained in the notice of the respondent in his C. No. V/Ch.73/15/2/88-Cx. Adj. dated 31-3-1989, in any manner

whatever, against or with reference to the petitioner herein. It is unnecessary for me at this stage to deal with the factual issues raised at length or to

express my views on the merits of the claims having regard to the disposal that these writ petitions deserve and I intend to give to them.

The question that really looms large for consideration is as to whether the trusses and purlins can be treated as excisable goods and the

manufactures can be called upon to pay the excise duty in respect thereof. Initially, the very petitioner in W.P. No. 5760 of 1989 filed an appeal

with the Collector of Central Excise (Appeals) Madras and there is no controversy over the position that the said authority in his order in Appeal

No. 127/88(M) dated 19-5-1988 (A. No. 79/88-M) passed the following orders :-

Trusses and purlins cannot be called excisable goods. However, from 1-3-1988, trusses and purlins are excisable goods as tariff heading of

Central Excise Tariff Act, 7300 specifically covers such trusses and purlins. The coverage of trusses and purlins under Central Excise Tariff Act

with effect from 1-3-1988 is admitted by the learned advocates. Therefore, the order of the Assistant Collector, Madras-VII-Division which is

otherwise correct is pre-matured by a few days. The same is modified to read, as if from 1-3-1988. Save and except for the above modification,

the appeal is otherwise rejected.

It is claimed that as against the said orders of the appellate authority, the Department has pursued the matter on further appeal before the

Customs Excise and Gold (Control) Appellate Tribunal, New Delhi and that appeal in Appeal No. E/1933/88-B1 stands posted for hearing to 3-

3-1992. It is in the above circumstances and placing reliance upon a decision of the Division Bench of the Rajasthan High Court in D.C.M. Ltd.

Vs. Union of India (UOI), and particularly paragraph 15 in the said decision, it is contended for the petitioners by the learned Senior Counsel Mr.

G. Narayanan that though the Department may be justified in issuing the notice in question to get over any challenge in future based on limitation

prescribed u/s 11A of the Act, it will not be open to respondents to proceed further with the adjudication of the issue pending disposal of the

appeal before the Tribunal particularly when the Appellate Authority the Collector of Central Excise (Appeals) Madras has already held the issue

in favour of the petitioners for the period prior to 1-3-1988. In my view, the claim on behalf of the petitioners is well merited and that there is no

serious controversy to this position as if it could not be, on behalf of the respondents having regard to the pendency of the issue before the

Customs Excise and Gold (Control) Tribunal at the instance of the respondent/department. In the light of the above, in my view, the only order that

is required to be passed in the interest of justice and in order to safeguard the interest of both parties is that further action pursuant to the impugned

notices shall be deferred by the respondent No. 2 pending final disposal of Appeal No. E/1933/88-B1 by the Customs Excise and Gold (Control)

Appellate Tribunal, New Delhi, with liberty to the respondents to pursue further action if they so desire after the disposal of the said appeal

depending upon its outcome. Equally it shall be open to the petitioners to raise whatever objections they have, in accordance with law and the

respondents shall, before proceeding further, deal with such objections, if any, raised. With these directions, the writ petitions shall stand finally

disposed of. No costs.