1. The facts 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 1-3-1969 belting woven as such is exempted from payment of excise duty. The petitioner therefore claimed exemption from excise duty contending that the article manufactured by it is belting woven as such. The Assistant Collector Central Excise, Indore by order passed on 14-7-75 did not accept the contention of the petitioner-company and rejected its claim. Aggrieved by the said order the petitioner preferred appeal before the Appellate Collector who by his order dated 23-11-1976 dismissed the appeal. The said order passed by the Appellate Collector became final. The petitioner thereafter continued to pay excise duty on the belting produced by it. On 15-10-1981 the petitioner submitted a classification list No. 43/81 before the Assistant Collector Central Excise Indore division Indore contending 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 Indore (Ann. 'C') the petitioner has submitted this petition.
2. The learned counsel for the petitioner contended that the material manufactured by the petitioner company is belting woven as such and therefore exempt from excise duty. In the return it is denied that the fabrics produced by the petitioner-company is belting woven as such. It is further contended in the return that the order passed by the Assistant Collector is appealable and therefore this court should decline to entertain this petition in exercise of its extraordinary power under Article 226 of the Constitution.
3. Having heard learned counsel for the parties we have come to the conclusion that this petition deserves to be dismissed. It is not disputed by the learned counsel for the petitioner that the order passed 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 Article 226 of the Constitution on the ground of availability of an alternative remedy.
4. We see no merit in the contention of the learned counsel for the petitioner. The Appellate Collector has as far back as in the year 1976 held that the fabrics produced by petitioner company were not exempt under the notification in question. The petitioner-company accepted the order of the Appellate Collector and continued to pay excise duty on the fabrics produced by it. In the year 1981 the petitioner-company again raised the said question before the Assistant Collector of Central Excise. Naturally the Assistant Collector was bound to follow the order passed by the Appellate Collector. If the petitioner-company was advised that the order passed by the Appellate Collector in the earlier appeal was erroneous it should 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 would be an exercise in futility as contended by the learned counsel for the petitioner. The petitioner thus having failed to exhaust the statutory remedy available to it in our opinion it is not a fit case for invoking of the extraordinary powers of this court under Article 226 of the Constitution more particularly when the petitioner acquiesced in the earlier order passed by the Appellate Collector in the year 1976 and the question raised is a disputed question of fact. The petitioner is therefore not entitled to any relief in this petition.
6. As a result of the discussion aforesaid this petitioner fails and is dismissed. In the circumstances the parties shall bear their own costs of this petition. The outstanding amount of security deposit be refunded to the petitioner after verification.