TaxTMI 
TaxTMI 
2000 (9) TMI 85
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....Rs. 4,31,096 on 1306.350 MT of DCC brand cement manufactured and cleared without payment of proper duty from 1-4-1994 to 19-8-1994 should not be recovered from it under Rule 9(2) read with Section 11A of the Act and as to why a penalty should not be imposed under Rule 52A and 173Q of the Rules. Allegation was that the petitioner was manufacturing and clearing cement under the brand name of DCC, which is registered brand name of Dinesh Cement Udyog Pvt Ltd, Bhatapara. After amendment of Notification No. 1/93 by Notification No. 55/94, dated 1-3-1994, effective from 1-4-1994 by virtue of para 4 read with Explanation IX of the said Notification, benefit of SSI exemption is not available to goods bearing brand name/trade name (registered or not) of another person, even if the brand name owner is entitled to small scale concessional benefit. As the petitioner had manufactured and removed 1306.350 MT of cement during the period from 1-4-1994 to 19-8-1994 valued at Rs. 17,00,445 under the brand name of DCC, which is a registered brand name of M/s. Dinesh Cement Udyog Pvt. Ltd., without payment of Central Excise Duty, leviable at the rate of Rs. 330 per MT and had not followed the procedur....
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....cise, 1999 (111) E.L.T. 325 and submitted that when statutory remedy is available, a writ petition should not be entertained. 4.As pivot of petitioner's stand is founded on L. Chandra Kumar's case (supra), it is necessary to take note of a paragraph on which strong reliance has been placed. Paragraph 90 of the said judgment on which reliance has been placed reads as follows : "We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Article 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution". 5.The view expressed in the paragraph quoted above was rendered in a contextually different background. Question before Apex Court wa....
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....thers v. State of Punjab and Others, AIR 1985 SC 218). There is always peril in treating the words of a speech of judgment, as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case (See Herrington v. British Railways Board, (1972) 2 WLR 587. It is needless to repeat the oft quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. 6.Relying on the decision of Madhya Pradesh High Court in the case of Neo Sacks Limited (supra), it has been contended that the appeal provided under the Act is restrictive in nature and character and cannot be treated as efficacious remedy to oust the jurisdiction of Writ Court. Para 16 of the judgment reads as under : "Moreover the remedy of appeal provided in Section 35L is restrictive in nature and character and thus could not be treated as efficacious to oust the exercise of writ jurisdiction [See AIR 1964 SC 1419, 1985 (19) DLT 22 (SC), AIR 1985 SC 330, AIR 1994 SC 2377]". 7.It may be further noted that High Court proceeded on the basis that though....
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.... meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution but then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged." 9.On a bare perusal of the decision, it is abundantly clear that the Apex Court's view was to the effect that Article 226 is not meant to short-circuit and circumvent the judicial procedures. The exceptions indicated do not apply to the nature of dispute involved. 10.Reference has also been made to State of Andhra Pradesh v. M/s. T.G. Lakshmaiah Setty ....