K.S. Puttaswamy, J.
1. For the period from 1st January, 1970 to 31st December, 1970 the petitioner, a reputed manufacturer of textiles, manufactured a textile item called 'X-40, deducts'. On that manufactured article, the petitioner claimed that it was liable to pay excise duty under tariff item No. 19I(2) of the Central Excises and Salt Act of 1944 (hereinafter referred to as the Act) and accordingly paid the necessary excise duty thereon. On 26th June, 1971 the Superintendent of Central Excise, Bangalore (hereinafter referred to as the Superintendent) issued a show cause notice (exhibit B) to the petitioner inter aliaclaiming that the Article 'X-40, deducts' should have been levied with excise duty under tariff item No. 19I(1) of the Act and the difference of excise duty amounting to Rs. 97.800,39 should be paid for the aforesaid period. In response to the said show cause notice, the petitioner filed its objections inter alia contending that the levy already made and collected was in conformity with the circular instructions issued by the Central Board of Excise and Customs (hereinafter referred to as the Board) in its circular instructions No. 18/69 dated 18th June, 1969 (exhibit A) and, therefore, it was not liable to pay the difference of duty demanded on the manufactured article. Before the original authority, the petitioner urged that the samples collected had no relevance to the manufactured article and that the matter should be decided on an appraisal of the proper sample relevant to the manufactured article. Unfortunately, the Assistant Collector of Central Excise, I.D.O., Bangalore III Division, Bangalore (hereinafter referred to as the Assistant Collector) the original authority, without considering the true nature of the objections raised by the petitioner, and the circular instructions issued by the Board, by his Order No. C.V/19/11/8/71 dated 12th July, 1972 (exhibit F), overruled the objections and confirmed his show cause notice. Against the said order of the Assistant Collector, the petitioner filed an appeal in Appeal No. 2284/72(B) before the Appellate Collector of Central Excise, Madras (hereinafter referred to as the Collector), who by his order dated 5th August, 1975 (exhibit K) dismissed the same and affirmed the order of the Assistant Collector. Against the said orders of the Collector and the Assistant Collector, the petitioner presented a revision petition on 17th October, 1975 (exhibit L) before the Government of India, which was then exercising the revisional jurisdiction under the Act. As the revisional authority did not take up the revision petition for disposal within a reasonable despatch of time, the petitioner presented this writ petition under Article 226 of the Constitution on 16th November, 1976 challenging the orders of the Collector and the Assistant Collector. Before this Court issued rule nisi in the case, the petitioner withdrew the revision petition presented before the Government and urged for the determination of the case on merits. Accepting the said submission, this Court on 19th August, 1977 has issued rule nisi.
2. Sri K.P. Jagadeesan, learned Counsel for the petitioner, contends that the orders made by the Collector and the Assistant Collector determining the liability under tariff item No. 19 I(1) of the Act are based on 'no evidence' and are manifestly illegal. Elaborating his contention Sri Jagadeesan has maintained that the evidence, if any, on which the authorities have recorded their findings, viz., (i) samples of bleached variety and (ii) grey warehouse register were totally irrelevant and the relevant evidence, if any, available had not been taken into consideration and decided.
3. Sri. K. Shivashankar Bbat, learned Central Government Senior Standing Counsel, appearing for the respondents, in justifying the impugned orders contends that when the petitioner had very rightly availed the legal remedy of revision before the Government, but in advisedly withdrew the same (he) cannot be permitted to challenge the impugned orders under Article 226 of the Constitution.
4. As the later contention urged by Sri Bhat goes to the root of the matter, it is proper to examine the same first and then deal with the merits, if it becomes necessary.
5. The Act, as it then stood, provided for a revision and the petitioner before approaching this Court did avail the same. Before the Government, the petitioner even urged for the expeditious disposal of his case as the original authority was pressing for the payment of the amount. When the revisional authority did not take up the simple revision that was filed before it for an unduly long time, the petitioner approached this Court challenging the orders passed by the appellate and the original authorities expressly alluding to that fact also in its petition. After the petitioner withdrew the revision petition, this Court examining the merits has issued rule nisi in the case. In their statement of objections, the respondents very rightly do not dispute the correctness of these facts.
6. A revision under the Act, even when Government exercised the power of revision, was only a power conferred on it and was not a right given to the party. When Government unduly delayed the disposal of a simple revision petition before it and the original authority was pressing for the payment of the differential duty, the petitioner alluding to those facts has approached this Court. As on to-day, Government does not even exercise the power of revision under the Act. As is well known, existence of a legal remedy and its availment do not really touch on the jurisdiction of the Court and it is only one of the factors to be taken into consideration, in particular, before this Court issued rule nisi.
7. When this Court on an examination of the facts and circumstances of the case and the situation in which the petitioner was placed, has permitted the petitioner to withdraw its revision petition and has issued rule nisi, it would not be proper for this Court to entertain the objection raised by Sri Bhat and decline to examine the merits of the matter. Acceptance of the objection raised by Sri Bhat would result in manifest injustice to the petitioner. For all these reasons, I reject this preliminary objection raised by Sri Bhat. As I have rejected this preliminary objection raised by Sri Bhat, I proceed to examine the merits of the contentions urged before me.
8. On the methodology that should be adopted in determining whether the manufactured Article 'X-40 deducts' would fall within tariff item No. 19 I(1) or 19 I(2), the circular instructions issued by the Board, which were binding on the authorities functioning under the Act clearly set out the methdology. Both parties do not dispute on that methodology. But, the real question is whether that methodology has been properly applied to the facts and circumstances of the case or the manufactured article for the relevant period.
9. Before the Collector and the Assistant Collector the petitioner pleaded that the sample collected by one of its officers on 17th June, 1971 was totally unrelated to the manufactured article in dispute and the correct sample that should be taken into consideration and decided was 'Looms state grey X-40 deducts'. Unfortunately, the appellate and the original authorities, without riveting their attention to this aspect of the matter and virtually brushing aside this serious contention and in a way accepting the case of the petitioner that what had been collected as sample was not really relevant, have held otherwise against the petitioner on the basis of a register called 'grey warehouse register' (hereinafter referred to as the register). Unfortunately this register, has been relied on by the authorities was not available even when the authorities determined the matter and in any event is not available to-day. Before the appellate authority, the petitioner had specifically contended that the reliance placed on the register to which it had no opportunity to state its case, was violative of the principle of audi alteram pattern. But, the Collector instead of dealing with this aspect of the matter, as he was bound to has glossed over the same and affirmed the finding of the Assistant Collector by a process of reasoning that is difficult to follow and appreciate. On the above discussion, what emerges is that the authorities have relied on evidence that was totally irrelevant to the determination and their findings are based on no legal evidence. As the matter stands to-day, no legal evidence relevant to the matter can be collected and decided afresh, even if this Court were to reserve liberty to re-do the matter. In these circumstances, there is no other alternative for this Court except to quash the impugned orders as based on no evidence.
10. In the light of my above discussion, I hold that the impugned orders are liable to be quashed. I, therefore, quash the impugned orders.
11. Rule issued is made absolute. But, in the circumstances of the case, I direct the parties to bear their own costs.