1. M/s Woodcrafts Ltd. petitioner herein has filed the present writ petition under Article 226 of the Constitution with the prayer for issue of writ or order in the nature of Mandamus, certiorari and prohibition for setting aside and cancelling notice dated 13.1.1995 issued on 17.1.1995 and served on the petitioner on 18.1.1995, copy whereof has been filed with the writ petition as Annexure A, issued to the petitioner under Section 11A read with Section 11A(1), 11D(1) of Central Excise and Salt Act, 1944, (hereafter referred to as the Act) read with Rules 9, 52. 52A, 173C, 173G, 173Q, 209A and 226 of the Rules framed thereunder calling upon the petitioner to show cause as to why:
(i) Unaccounted for stock of plywood valued at Rs. 32,35,321.00 as in Annexure C-1/1 to C-1/11 seized on 07.09.1994 from Calcutta depot/godown and that valued at Rs. 8,04,989.07 as in Annex: C-1/12 to C-1/16, seized from their Delhi depot, in total value at Rs. 40,40,310.07, shall not be confiscated under Rules 1730 of the Central Excise Rules, 1944;
(ii) Unaccounted for cash amounting to Rs. 13,20,588 recovered from the cashier and Shri MP Choudhury, Vice President (Finance) at the head office on 21.07.1994 and seized, alleged to he part of the under valued sale proceeds of excisable goods, shall not be confiscated under Section 121 of the Customs Act, 1962, as made applicable to the central Excise matters by notification No. 68/63 Central Excise dated 4.5.1963 issued under Section 12 of Central Excise and Salt Act, 1944;
(iii) An amount of duty of Rs. 19,72,46,458.74 short paid and/or not paid shall be demanded from and paid by WCPL for the period from Jan 1990 to June 1994 under section HA of CESA, 1994 and/or under section 11D of the said Act concurrently or in the alternative ;
(iv) Land, building, plant, machinery, or any other things used in connection with manufacture, production, storage removal or disposal of such goods should not be confiscated under Rule 1730 of Central Excise Rules. 1944 ;
and
(v) Why a penalty should not be imposed upon them under Rules 1730 of the Central Excise Rules, 1944 for violation of the provisions aforesaid.'
2. Challenge against the said show cause notice has been made by the petitioner mainly on the ground that Collector Central Excise,
Shillong, who issued the show cause notice to the petitioner in the alleged exercise of power under the provisions referred to hereinabove, has acted illegally and without authority of law only for causing harassment to the petitioner and therefore, the said notice should be quashed and the respondents should be restrained from proceeding with the notice by issue of writ of mandamus and prohibition, as the case may be.
3. Briefly stated, short undisputed facts giving rise to the writ petition may be stated as follows:-
Pelitioner No. 1 is a Public Ltd. company under the Indian Companies Act, 1956 with its registered office at 9/1 RN Mukherjee Road, Calcutta, whereas petitioner No. 2 is an officer of the said petitioner No. 1. Reference hereafter to the term 'petitioner' shall be in relation to petitioner No. 1 who for all the practical purposes is the main petitioner. Petitioner is engaged in the manufacture of wood products including plywood and block boards in the State of Assam and its manufacturing units are situated in Jeypore, Diphu and Ledo. The products manufactured by the petitioner are excisable to Central Excise duty as per the approved classification and the duty is leviable ad-valorem in accordance with the Rules framed under the Act. Under Rules 173B and 173C read with Section 4 of the Act, provision is made for classification of the goods for the purposes of imposition of excise duty and the rates on which excise duty should be charged and the price list on which the product is sold. A controversy involved in the present case is squarely concerned with the price list approved under Rule 173C whereas, the classification of the goods and the rates on which excise duty should be charged which is required to be approved under Rules 173B is not in controversy. Therefore, the case is exclusively confined to the controversy in regard to the price list approved under rule 173C. Petitioner submitted price list for the approval before the Central Excise authority (Assistant Collector) as required by Rule 173C of the Act and there arose a controversy between the petitioner and the department which was ultimately settled between them by the Customs Excise & Gold (Control) Appellate Tribunal, for brief called CEGAT and after hearing the parties, i.e the department and the petitioner, the CEGAT by its order dated 31.3.1988 and 23.10.1989 gave directions to the Assistant Commissioner of Central Excise to ascertain the market value of the products manufactured by the petitioner in his factory and in the inquiry, the appropriate authority was required to determine the value of the products in consideration of the following factors :-
(a) whether the ex-factory sale were genuine; and
(b) whether the market existed at the factory gate in the sense that anybody wanting to buy the goods in wholesale at the factory gate could have purchased them at the stipulated ex-factory price ?
In keeping with the directions made by the CEGAT, the Assistant Commissioner, Sales Tax, by order dated 2.9.1991 approved the price list and pursuant to such approval of the price list, petitioner has been self levying/removing excisable products from his various factories from time to time after paying the excise duty as per the classification and the price list, as approved by order dated 2.9.1991. Subsequently also, price lists submitted by petitioner were duly approved by the appropriate authority and no controversy arose between the department and the petitioner in regard to the approval of price lists, in so much so, that no appeal revision as taken by either of them to the higher authorities in the excise department against the order passed by the appropriate authority under Rule 173C approving the petitioner's price list. Price lists submitted by the petitioner were also approved by the appropriate authority under Rule 173C even after service of the impugned notice on the petitioner.
4. Controversy between petitioner and the respondents however arose after a raid and search was conducted by the Excise Department at petitioner's head office and its 20 other branches simultaneously on 21.7.1994 at the instance of DGAE by the officers of the respective Collectors of Central Excise. In the said raid, various documents of incriminating nature were allegedly recovered and seized, statements of the personnel at various places were recorded on the date of the search and also thereafter under Section 14 of the Act. In the said raid, unaccounted cash amounting to Rs. 13,20,588 (in 10 packets) were also recovered from the cashier and another officer (Shri MP Choudhury, Vice President (Finance)) at the head office and the said amount was seized in the belief that the same was part of the sale proceeds corresponding to the under-valuation of excisable goods. As a follow up of the above search and seizure carried out on 21.7.1994 premises of some consignees of petitioner were also searched on 8.9.1994 and documents were seized and statement of the concerned persons were also recorded. From the scrutiny of the records, it appeared to the Collector of Customs and Central Excise, by whom the show cause notice was issued to the petitioner, that the petitioner had been evading payment of excise duty in the following manner:- (a) undervaluation of the products ; (b) substitution of grades; (c) clandestine removal of the excisable products, thereby evading payment of excise duty payable on those products. In relation of charges 1 and 2 dealing with under-valuation and
substitution of grades as per the statement of facts which was supplied to the petitioner alongwith the show cause notice, it was inter alia stated by the department that the petitioner had under valued the plywood products manufactured by them for which they had adopted a modus-operandi of showing a small percentage of sale (about 10%) at the factory gate even to the places like sale depots. The factory gate sales are found to be billed in accordance with the declared accessible value whereas, sales of the same commodity through the branches is billed at much higher price. From where it appeared to the department that a few so-called factory gate sales have been artificially created (purportedly at the declared accessible value) with a view to making it the basis for assessment of the entire sales. It was further alleged in statement of facts that the price paid by the customers for procurement of a particular product from petitioner's depot was as high as 200% to 300% compared to the price payable for direct procurement. The customers were found to procure 90% of the requirements from the sale depot of the petitioner and paying more instead of procuring directly from the factories and paying much less. The factory gate sales, particularly to places were sales depots are there, do not appear to be sale in ordinary course of whole sale trade. It was further found by the department that accessible value declared by the petitioner was below the cost price. This satisfaction was reached by the department on the following ground; the costing of different varieties of the products are available from the data stored in the computer which was (duly seized and print outs taken therefrom) from their head office under the head 'purta rate'. It is found to be much more than the corresponding declared assessable value as would be evident from one such print out enclosed. For instance, the purta rate for 16mm variety of commercial block board during July 1993 is Rs, 112.31 whereas, the declared assessable value for the same was as low as Rs. 83.33; (Referable to price list number 115/MRG-II/92-93 Pt.I w.e.f. 28.1.1993). It was further found in the raid that ex-factory gate sales were faked as the products of such sales were not received by the concerned consignees; this satisfaction was arrived at by the department form the gate passes collected from factories and from the follow up searches made at the premises of the consignees.
5, Though petitioner has challenged the show cause notice (Annexure A to the writ petition) as a whole, but the arguments advanced at the Bar was kept confined by Sri Devi Pal, learned Senior advocate, who lead the argument in the case on petitioner's behalf to the charge of under valuation resulting in short levy of excise duty on the excisable products of the petitioner. This controversy has reference to the
approved price list under Rule 173C; a doubt has been raised by the department about the genuineness of the approved price list in view of the allegation contained in the statement of facts which has been appended to the show cause notice. A belief was formed that the products of the petitioner were under valued and was less than even the production cost and in cases of some products, the approved prices were about 200% to 300% less than the actual price on which the goods sold from the depots and other commercial establishments of the petitioner.
6. According to the petitioner, such controversy can be raised by the department only for questioning the legality or correctness of the approved price list in accordance with law Clause (5) of Rule 173C and so long the approved price list survived and is not aside either by higher authority or any other legal mode, it is not open to the departmental authorities to raise doubts on the correctness of the prices of the excisable goods manufactured by the petitioner which are reflected in the approved price list as per Rule 173C, nor is open nor lawful for them to charge the petitioner additional excise duty on the ground of under payment or short levy of the excise duty. It has further been contended on behalf of the petitioner that the impugned notice has been served on the strength and in the light of the provisions for Section 4 of the Act as per the amendment made by the Finance Act of 1996 and also under the power in the proviso to Section 11A which too, was added by the Finance Act of 1996, therefore, contends petitioner's learned counsel, the impugned notice is wholly illegal and without the authority of law inasmuch as, the newly added provisions in Sections 4 and 11A of the Act would not have retrospective operation/ application in so far as the liability of the petitioner under the impugned notice towards payment of additional excise duty in respect of commodities removed by him from the factory prior to the date of the amendment are concerned. Petitioner has also raised the contention that the impugned show cause notice is barred by limitation as the time permissible for issuance of such notice on the ground of short levy etc. and section 11A of the Act is only six months whereas the assessment period in regard to the alleged short levy has reference to the period between January 1990 to June 1994.
7. On the above facts and circumstances, petitioner has questioned the legality of the impugned notice and has sought its quashing by this Court in view of the law declared by the Supreme Court in Rainbow Industries (P.) Ltd v. Collector of Central Excise, Vadodara. 1994 (74) ELT (Excise Law Times) 3(SC) and in Collector of Central Excise, Baroda v. COTSPUN Ltd, 1999 (113) ELT 353 (SC) and some
other judgments of this Court (Gauhati High Court) dated 28.9.1994 in Civil Rule Nos. 581/87, 593/87, 1243/87, 1387/87, 592/87 and another judgment dated 31.5.1995 in Civil Rule Nos. 1465/89 and 1467/89 thereby quashing identical notice issued to the petitioner on 6.2.1988 under Section 11A of the Act and also the order passed in Civil Rule No. 1739 and 1741 of 1990 and Civil Rules No. 1528-1531 /89. Main emphasis however has been laid by the petitioner on the judgments of the Supreme Court in Rainbow (supra) and COTSPUN (supra).
8. On behalf of the respondents, contention advanced in opposition of the writ petition by Shri KK Mahanta, senior CGSC, is mainly on the ground of the maintainability of the writ petition. It has been contended by him that in view of the fact that petitioner can appear before the Collector of Central Excise for filing his reply as has been required of him in the impugned show cause notice whereupon the Collector will be in a position to assess and examine his contentions that may be advanced in the show cause and in case order passed by the Collector is not agreeable to the petitioner, he has further remedy of appeal and then revision, therefore, contended Shri Mahanta it is neither appropriate nor proper for the petitioner to approach this Court for the purpose of impugning the show cause notice to the very outset after its issue nor it will be appropriate nor proper for this Court to take resort to the exercise of its power under Article 226 of the Constitution for quashing the notice in case the grounds stated by the petitioner are found correct. It has further been contended on behalf of the respondents, that since the impugned notice is based on statement of facts which have been challenged by the petitioner in the writ petition, it will not be appropriate for this Court to undertake, for itself, the exercise of determination of the correct facts for the purpose of arriving at a correct conclusion in regard to the controversy involved in the writ petition hence, contended Shri Mahanta, this Court should refrain from undertaking the exercise for determination of facts for the purposes of issuance of the writ/order or direction in the nature as has been prayed by the petitioner. The main contentions, raised by the respondents however is that the writ petition, at this stage, is not maintainable, therefore the same should be dismissed and the petitioner may be relegated to avail the remedy of filing his show cause and to agitate the matter within the statutory remedies available to him under the Act and the Rules framed thereunder.
9. In the rejoinder argument Dr. Devi Pal contended on behalf of the petitioner that access to the extraordinary remedy provided under Article 226 of the Constitution cannot be denied to the petitioner
simply because the High Court may be required to take notice of certain facts for the purpose of arriving at the conclusion as to whether the impugned notice was issued to the petitioner with or without the authority of law. It was further argued that once it prima facie appears to the Court, from undisputed facts, that the impugned notice has been issued without the authority of law the notice has to be quashed by the Court so as to avoid unnecessary harassment to the petitioner of filing his show cause and thereafter contesting the issues raised in the show cause notice in the form provided in the Act. It was further reiterated on behalf of the petitioner that the present writ petition must be entertained by this Court for the fact that the impugned notice has been issued wholly without the authority of law which is applicable on the question raised in the impugned show cause notice, contends petitioners learned counsel, cannot be raised in view of the settled position of law in the above two decisions of the Supreme Court in Rainbow and COTSPUN (supra).
10. It was earlier noticed by me in the judgment, that in the impugned show cause notice apart from the charge of short levy contain other charges have been levelled against the petitioner which relate to clandestine removals of excisable products from the factory without payment of excise duty thereon, however, no specific charge of nonpayment of excise duty or of its non-levy on the excisable goods at the time of removal from the factory has clearly been made. From the overall reading of the charges and the statements of facts appended thereto, what appears is that the petitioner has been charged of being guilty of the short levy (under payments of excise duty) by having recourse to the payment of the excise duty as per the price list (duly approved by the department) as the same did not represent the market price on which the goods were actually sold by the petitioner for which petitioner is charged to have adopted underhand methods of showing fake sales at the factory gate, though such sales had never taken place. The allegations made in the show cause notice for the purposes of the present proceedings have to be treated as correct as it is not open for the petitioner to argue that the show cause notice is based on wrong facts.
11. I propose to first consider petitioners argument that the show cause notice is barred by time. This argument is liable to be accepted only if facts alleged In the impugned notice relating to clandestine removals is not accepted. Period of limitation for taking action under Section 11A of the Act in case of fraud, collusion, misrepresentation or any wilful mis-statement or suppression of facts or contravention of the provisions of the Act with the intention to evade payment of duty, in five years. Therefore, accepting the charges of clandestine
removal fraudulent, short levy of excise duty by taking recourse to clandestine methods as has been alleged in the show cause notice, in my opinion, the plea of bar of limitation need not be considered. On these grounds petitioners first contention that the notice is barred by time for having been issued after expiry of six months time from the period of the alleged short levy of excise duty, is shelved.
12. Coming to petitioners contention that the charge of short levy cannot be levelled against the petitioner Under Section 11A of the Act and that no action under the said provision can be taken against him, for the reason that the petitioner has already paid excise duty as per the approved price list before removal of all the products which had been removed by him from the factory by way of ex-factory sales or otherwise. This according to the petitioners is the reason for which the impugned notice should be held to be illegal and without the authority of law. The department, according to petitioner possessed no power to issue such notice on the allegation which are made, against the petitioner in the notice. This contention of the petitioner is mainly founded upon the judgment of the Supreme Court in M/s Ftainbow Industries and COTSPUN (supra). It is therefore appropriate that the decision of the Supreme Court in the aforementioned two cases must be noticed at the very outset.
13. In Rainbow Industries (supra), the question which fell for consideration by the Supreme Court was stated by the Supreme Court (Hon'ble Mr. Justice R.M. Sahai) in the very first para of the report in the following words :-
'The short question of law that arised for consideration in this appeal directed against the judgment and order of the Customs, Excise & Gold (Control) Appellate Tribunal. New Delhi is whether the classification and the price list accepted by the Department and acted upon, found subsequently to be erroneous, is to be applied prospectively or retrospectively.'
The question so raised by the Supreme Court in the very first para of the report were discussed by it in para 3 where respective arguments made in support and opposition of the controversy were noticed. It was contended on behalf of M/s Rainbow Industries (supra) that the classification and the price list submitted by them having been accepted and acted upon under Rule 173C(2) of the Central Excise Rules, 1944, the department was precluded from challenging it and therefore is stopped from claiming that the appellant was guilty of suppression of facts, hence the proceedings under Section 11A of the act could not be taken. It is also argued on behalf of M/s Rainbow Industries that the department could not have changed its opinion
inasmuch as the law does not contemplate issuance of such notice only because the department felt that particular item was dutiable in another entry. In the alternative, it was also submitted on behalf of M/s Rainbow Industries that where department had been acting upon the price list submitted by the company worked out in one manner but the department claims that it should be calculated in a different manner then even if the calculation resorted to by the department is held to be correct, it should apply from the date when the price list was submitted. The Court left aside from its consideration the controversy in regard to the jurisdiction of the department to initiate proceedings under Section 11A as the same was found not to be necessary. The Supreme Court however, accepted the contention of the company (M/s Rainbow Industries) on the merits of the challenge against the power to make additional demand of excise duty in the following words :-
'However, once the department accepted the price list, acted upon it and the goods were cleared with the knowledge of the department, then in absence of any amendment in law or judicial pronouncement, the reclassification should be effective from the date the Department issued the show cause notice. The reason' for it is clearance with the knowledge of the department and no intention to evade payment of duty.'
14. From the above opinion expressed by the Supreme Court in Rainbow Industries (supra), what follows is that if excisable products have been removed/levied from the factory after payment of excise duty as per the approved price list with the knowledge of the departmental officers no exception in relation to the rate of payment of the excise duty against such removals can be taken in future on the plea and on the ground that there occurred under payment or short levy of excise duty of the products which had been removed earlier. The department is stopped from making a fresh levy in respect of the earlier removed excisable products on the ground of short levy and that, if what the department felt was found correct, levy as per the fresh rates or as per the fresh prices as may be found correct by the department, can be made only with prospective effect (from the date of the notice) and not with retrospective effect.
15. The case, COTSPUN Ltd. (supra), was decided by a five Judges' bench of the Supreme Court. In that case, the Supreme Court was considering the controversy of similar nature in context of approved classification list under Rule 173B of Central Excise Rules, 1944. In para 15 of the report however the Supreme Court while approving its earlier decision in Rainbow Industries (supra) clarified that the provision under Rules 173B and 173C are analogous. It is on this
ground that strong reliance has been placed on behalf of petitioners on COTSPUN Ltd. (supra), to substantiate the assertion that excise duty paid by petitioner before removal of the excisable products from his factory gate or from elsewhere cannot be subjected to reassessment on the ground of short levy or short payment until a show cause notice for changing the approved price list is given and the price list is accordingly changed to be made applicable for future removals of excisable products.
16. After noticing the provisions of Rule 173B (which are parametedia to Rule 173C) the Supreme Court in para 6 of the report noticed the arguments advanced on behalf of the department by the Additional Solicitor General of India to the following effect: -
' The Tribunal was in error In the view that it took; that, by reasons of Rule 10 (which is in parametedia with Section 11A), the re-classification of the NES yarn would operate prospectively and that, therefore, the assessee was liable to pay excise duty on the basis of the modified classification list for the period the commenced six months before the date on which the re-classification was made.'
Supreme Court thereafter noticed the judicial precedence on the point in its earlier decisions including the Rainbow Industries (supra). In para 11 of the report. Supreme Court observed as follows: -
'Rule 173B deals with classification list. It entitles the proper officer of Excise to make such inquiry thereon as he deems fit and requires him to approve the list only thereafter, and that with such modifications as are considered necessary. The assessee must determine the excise duty that is payable by him on the goods he intends to remove in accordance with the approved classification list. Sub-rule (5) provides for modification of an approved classification list.'
In para 12, the scope of Rule 10 (as Section 11A) was considered by the Supreme Court in the following words:-
'Rule 10 is a provision for recovery of duties that have not been levied or paid in full or part. So far as is relevant for our purposes, it provides that where any duty has been short levied, the Excise Officer may, within six months from the relevant date, serve notice on the assessee requiring him to show cause why he should not pay the amount that had been short levied. Rule 10 does not deal with classification lists or relate to the re-opening of approved classification lists. That is exclusively provided for by Rule 173B.'
Thus, analysing the respective scope and ambit of Rule 173B and Rule 10 of the Excise Rules, 1944, in paras 11 and 12, the Supreme
Court in para 13 expressed its mind as follows:-
'The levy of excise duty on the basis of and approved classification list is the correct levy, at least until such time as to the correctness of the approval is questioned by the issuance to the assessee of a show cause notice. It is only when the correctness of the approval is challenged that an approved classification list ceases to be such.'
And, lastly, in para 14, the Supreme Court gave its verdict in the following words:-
'The levy of excise duty on the basis of and approved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule 10 has been no application.'
Observations made by the Supreme Court in paras 13 and 14 of the report which have been reproduced hereinabove with reference to Rule 173B (which is in parimataria to Rule 173C) and Rule 10(which is forerunner to Section 11A and similar provision as Section 11A) go clearly to show that payment of excise duty at the time of the removal of the excisable goods by the petitioner as per the approved price list cannot be considered or termed on any ground whatsoever to be clandestine removal/fraudulent removal, hence action under Section 11A of the Act on the ground of short levy cannot be initiated by the Department on whatever fact. In view of the fact that the provisions in Rules 173B and Rule 10 which were subject matter of discussion by the Supreme Court in M/s. COTSPUN Ltd. (supra) happen to be in paramateria and analogous to the provision of Rule 173B and Section 11A, hence the law laid down by the Supreme Court in COTSPUN will have full application to the facts and the controversy involved in the present case. Fortunately for the petitioner, the observations in this regard has also been noticed earlier in this judgment.
17. In view of the above discussion, there remains little doubt that so far as excisable goods which have been removed by the petitioner after payment of excise duty as per the approved price list under Rule 173C. Notice under Section 11A on the ground of short levy cannot be issued requiring the petitioner to pay more duty hence the impugned notice in so far as the said charge is concerned, is wholly without jurisdiction.
18. After having examined the main controversy which is involved in the case, it is now necessary to turn to the second question which has been raised by Shri KK Mahanta, regarding maintainability of the writ petition. This argument of the learned counsel for the Department does not require detailed deliberation. In a catena of decisions by the Supreme Court, latest being Whirlpool Corporation
v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22; a Division Bench of the Supreme Court held that where a show cause notice has been Issued by an authority having no power under the law to issue such notice, the person who is subject to the notice need not have to wait for the decision by such authority and will not be required to file his show cause as demanded from him by the notice and will be fully entitled to approach the High Court for invoking its extraordinary remedy under Article 226 of the Constitution for quashing the notice. Relevant observations by the Supreme Court appear in paras 20 and 21 of the report which need to be reproduced below:-
'Much water has flown beneath the bridge but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution in spite of the alternative statutory remedy, is not directed specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.'
That being so, the High Court was not Justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and the registrar in the circumstances of the case was not justified in acting as the TRIBUNAL'.'
19. Earlier, addressing the question in relation to the practice earlier adopted by the High Court while exercising its power under Article 226, the Supreme Court observed in para 15 as follows:-
'Under Article 226 of the Constitution the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions as one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently' held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the virus of the act is challenged. There is plethora of case law on this point put to cut down this circle of forensic whirlpool, we would rely on some old decisions of evolutionary era of the constitutional law as they still hold the field.'
20. From the above quoted observations made by the Supreme Court after taking into consideration the law operating in the field, what has been held is that if the action impugned In the writ petition is shown to be wholly without jurisdiction or by way of the wrongful usurption of power, the applicant who has approached the Court would not be relegated to avail the alternative statutory remedy. . Therefore, in view of the fact that the impugned show cause notice so far as It relates to short levy of excise duty and under payment thereof by the petitioner In relation to the goods removed by him before the date of the notice after payment of excise duty strictly in accordance with the price list approved under Rule 173C, the action of the Collector of Central Excise would be totally and absolutely without the authority of law Inasmuch as, the Collector of Central Excise is not possessed of the authority under the law to hold the opinion that petitioned has evaded payment of excise duty by the method of short levy by not correctly depicting the prices of the commodities in the price list.
21. For the above reasons, I ,do not agree with the contention of the learned counsel for 'the department that the writ petition is not maintainable and should be dismissed on that ground and the petitioner is relegated to avail the remedy of filing his show cause before the Collector and to pursue the remedies of appeal and revision as provided in the Acts and the Rules.
22. In view of the above discussion, the writ petition succeeds and is accordingly allowed. Impugned notice dated) 17.1.1995 (Annexure A to the writ petition) is quashed. It will however be open for the respondents to take appropriate legal action against petitioner in respect of matters other than the action based on the allegations of short levy in relation to the removals of excisable products carried out by petitioner prior to the date of the notice on which excise, duty had already been paid by petitioner as per the approved price list, petitioner shall get his costs of the case.