J.S. Verma, Ag. C.J.
1. This order shall also dispose of Misc. Petition No. 311 of 1982, both of which relate to the same petitioner and involve substantially the same point for decision.
2. The petitioner-company has a factory at Kumhari in district Durg in the State of Madhya Pradesh and another at Ambarnath in the State of Maharashtra, where it manufactures sulphuric acid as well as oleum. We are concerned in these petitions only with the manufacture of these chemicals at the factory at Kumhari and the payment of excise duty thereon. During the relevant period, the sulphuric acid manufactured by the petitioner-company at Kumhari was used mainly for captive consumption to manufacture fertilizers and other goods and a small part alone was sold as sulphuric acid itself while the entire quantity of oleum manufactured at Kumhari was used for captive consumption to manufacture other goods. The price lists submitted by the petitioner company showing the assessable value of sulphuric acid and oleum manufactured by it at the Kumhari factory during the relevant period covered by these petitions were approved by the concerned Assistant Collector, Central Excise, Bhilai (respondent No. 2) and the excise duty thereon was paid by the petitioner company on that basis. Subsequently, the Assistant Collector, responden No.2, issued show cause notices to the petitioner-company requiring it o show cause why the assessable value of sulphuric acid and oleum manuactured by it at its Kumhari factory be not reassessed on account of the higher assessable value assessed for the same goods manufactured at its factory at Ambarnath. The petitioner-company replied to the show cause notices denying that there was any case for reassessment of the assessable value either of sulphuric acid or oleum manufactured by it at its Kumhari factory. However, the Assistant Collector, respondent No.2, rejected the petitioner-company's contention and reassessed the assessable value of sulphuric acid as well as oleum manufactured at the Kumhari factory at a higher figure merely on the basis' of the higher asessable value relating to the manufacture of these goods at the Ambarnath factory. Aggrieved by these orders of the Assistant Collector, the petitioner company has filed Misc. Petition No. 310 of 1982 for quashing the order of respondent No.2, Assistant Collector, relating to the reassessment oif the assessable value for sulphuric acid and Misc. Petition No. 311 of 1982 relates to similar orders pertaining to oleum.
3. The impugned orders passed by the Assistant Collector, respondent No. 2, in Misc. Petition No. 310 of 1982 are Exh. 'E' dated 30th September, 1981 and Exh. 'F' dated 5th October, 1981; and in Misc. Petition No. 311 of 1982, the impugned order passed by the Assistant Collector, respondent No. 2, is Exh. 'A' dated 14th February, 1982.
4. Both these petitions were filed and were also admitted for hearing parties prior to October, 1982 when the extensive amendments made in Chapter VI of the Central Excises and Salt Act, 1944, were brought into force. By the amendment so made, Section 35 of the Act was extensively amended in order to provide for further appeals, reference to the High Court and thereafter a further appeal to the Supreme Court. These petitions were, however, admitted before the provisions for additional remedies made in the Act were brought into force. The learned counsel for the respondents contends that the existence of alternative remedies is alone sufficient for us to refuse to interfere in these petitions. He placed reliance on the decisions of the Supreme Court in Titagarh Paper Mills Co. Ltd. v. State of Orissa AIR 1983 SC 603 and Asstt. Collector, C.E., Chandan Nagar v. Dunlop India Ltd. [AIR 1985 SC 330. In our opinion, in the facts of both these petitions, it would not be appropriate to dismiss these petitions merely on this ground after the same were admitted for hearing parties in the circumstances stated earlier. This is more so because on.merits the impugned order passed by the Assistant Collector, respondent No. 2, cannot be sustained inasmuch as it contains a patent error on account of which it must be set aside. The principle not to interfere in exercise of our writ jurisdiction where an alternative remedy is available under the statute and the same has not been exhausted by the petitioner, is merely a rule of discretion and not one which excludes or prohibits the exercise of this jurisdiction by us. We are, therefore, unable to accept this contention of the learned counsel for the respondents.
5. On merits we find a common infirmity in the order passed by the Assistant Collector, respondent No. 2, in both these cases. The Assistant Collector did not meet any of the contentions urged by the petitionercompany in reply to the show cause notices issued to it for reassessment of the assessable value of sulphuric acid and oleum and his conclusion is based mainly on the fact that the assessable value for the same goods manufactured at the Ambarnath factory, which is at a considerable distance from Kumhari, was higher at the same time. In our opinion, this fact alone was not sufficient to reject the points raised by the petitioner company in reply to the show cause notices issued to.it for reassessment of the assessable value. The result, therefore, is that the contention of the petitioner-company that no case for reassessment of the assessable value of either sulphuric acid or oleum had been made out after the approval of the price lists by the Assistant Collector was rejected without giving any reasons for the same or meeting the points specifically raised in respect of that contention.
6. So far as the case relating to oleum is concerned, a further point arises with regard to the applicability of Sub-Clause (i) or Sub-Clause (ii) of Clause (b) of Rule 6 of the Central Excise (Valuation) Rules, 1975. The contention of the petitioner-company is that it is Sub-Clause (ii) and not Sub-Clause (i) of Clause (b) which applies; whereas the' conclusion reached by the Assistant Collector, respondent No. 2, is that it is Sub-Clause (i) which applies. In our opinion, this question also has to be decided on the basis of the facts of the particular case depending on the material available for deciding the point. The finding recorded even on this point does not indicate that all the relevant factors were taken into account before deciding the same. It is, therefore, necessary that the Assistant Collector should decide even this point afresh. For these reasons, we are of the opinion that the impugned orders passed by the Assistant Collector, respondent No. 2, in both these petitions must be quashed and the Assistant Collector should be directed to decide these matters afresh.
7. Consequently, both these petitions are allowed. The impugned orders, i.e., Exh. 'E' dated 30th September, 1981 and Exh. 'E' dated 5th October, 1981 in Misc. Petition No. 310 of 1982; and Exh. 'A' dated 14th February, 1982 in Misc. Petition No. 311 of 1982 are quashed. The Assistant Collector, respondent No. 2, shall decide these matters afresh in accordance with law with advertance to the above observations after notice to the petitioner-company. The bank guarantees furnished to the tune of Rs. 1,96,285 in Misc. Petition No. 310 of 1982 and Rs. 51,725 in Misc. Petition No. 311 of 1982 shall be returned to the petitioner-Company. There will be no order as to costs of these petitions. The security amount, if any, be refunded to the petitioner-company in each case. ,