1983 (1) TMI 87

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....s giving rise to this petition under Articles 226 and 227 of the Constitution are as follows : The petitioner - company manufactures filter cloth and other industrial fabrics including belting. Excise duty is levied on the belting manufactured by the petitioner under Item No. 19 of the Schedule to the Central Excises and Salts Act 1944 (for short the Act). Under Notification No. 70/69, dated 1-....

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....ontending that the belting produced by it was exempt from excise duty under the aforesaid notification. The Assistant Collector did not approve of the classification list on the ground that the Appellate Collector had already decided that similar material was not exempt from the excise duty. Aggrieved by the order dated 26-12-1981 passed by the Assistant Collector, Central Excise, Indore Division,....

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....by the Assistant Collector Central Excise is appealable under the provisions of the Act. However the learned Counsel for the petitioner contends that as the Appellate Collector has already decided the matter the preferring of an appeal against the impugned order would be an exercise in futility and therefore this court should not refuse to examine the claim of the petitioner under Art. 226 of the ....

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....ld have preferred appeal against the impugned order passed by it. The appellate Collector then could have examined the matter and come to the conclusion on facts whether the fabrics produced by the petitioner-company can be said to be belting woven as such and therefore, were exempt from levy of excise duty. 5. It cannot be assumed that the preferring of an appeal against the impugned order wou....