1. This writ petition is filed by the Nandi Hasbi Textiles Ltd. It is prayed for, among other things, to prohibit the 1st Respondent-Assistant Collector of Central Excise, Hubli and the 2nd Respondent-Superintendent of Central Excise, Gadag, from demanding differential duty pursuant to the order made on 28-7-1979.
2. Further, there is a prayer for prohibiting the Respondents from initiating any coercive steps for recovery of the amount as demanded under Exhibit 'B' to the petition in the sum of Rs. 91,802.47p. There is a prayer for interim order for staying the operation of Exhibit 'B', the order subjecting the petitioner Mills to additional levy of Excise Duty.
3. It is significant to notice that there is no prayer for quashing either the order at Exhibit 'B' which subjects the Textile Mills to the Additional levy of excise duty or quashing the demand notice Exhibit 'D' on any ground whatsoever. The learned counsel for the petitioner has strenuously contended that under Section 35 of the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act'), there is a statutory right of appeal against the order passed by the 2nd respondent to the Central Board of Excise and Customs having jurisdiction. The order was passed on 28-7-1979 and the same was intimated to the petitioner Mills on 3-8-1979. The learned counsel has fairly conceded that he cannot ask this court to quash the order at Exhibit 'B' as well as the demand notice at Exhibit 'B'. His submission is that he is in the difficult predicament of facing coercive steps even before obtaining appropriate relief from the appropriate appellate authority, under Section 35 of the Act. No convincing explanation is offered as to what the petitioner was doing between 2-8-1979 and 20-8-1979, the date which the demand notice bears. The real grievance of the petitioner is that if coercive steps are taken, the appeal likely to be filed by him, under Section 35 of the Act, may become infructuous or in any way frustrated to the extent of putting him to undue hardship of praying the amount demanded under Exhibit 'D' to the petition.
Under Article 226, it has been held by the Supreme Court, in the case of Madan Gopal Rungta (The State of Orissa v. Madan Gopal Runta : 1SCR28 ) :
'Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application..... An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding......'
Since there is no main relief asked for in this Writ Petition against the order at Exhibit 'B' and the demand notice Exhibit 'D'. It will be impermissible for this Court to exercise its jurisdiction under Article 226 merely to grant time to the petitioner to prosecute an appeal with an appropriate prayer for interim relief under Section 35 of the Act because he has a period of ninety days from date of order to prefer such an appeal. The petitioner should have been diligent on receipt of the order and taken steps to prosecute the appeal in time and obtain interim relief which he has asked now, from the appellate authority.
4. For the above reasons, this Writ Petition is rejected without rule being issued.