ORDER
1. The petitioner filed the classification list No. 1/86 effective from 1-3-1986 in respect of their products Thymol Crystal I.P. Terpinhydrate I.P. Grade and Terpinecl B.P.C. seeking their classification under Chapter subheading No. 3003.30 claiming Nil rate of duty. The said classification was approved provisionally under Rule 9-B of Central Excise Rules, 1944 on 10-6-1986. Later on the petitioner filed another classification list No. 1/87 effective from 23-3-1987 in respect of their above products classifying them under the same head. This list was also provisionally approved under Rule 9-B of Central Excise Rules, 1944 on 30-3-1987.
2. By order dated 27-4-1991 the Assistant Collector, Central Excise, Bareilly has ordered final approval of classification of Thymol Crystal I.P. Terpinhydrate I.P. Grade and Terpineol B.P.C. and amended the provisional classification to the extent indicated in the impugned order dated 27-4-1991. It is evident that Chapter heading numbers as also the rate of Central Excise Duty stands altered pursuant to the impugned order dated 27-4-1991. Pursuant to the said order demand notices were issued on 5-6-1991 and 27-6-1991 followed by Memorandum dated 15-7-1991 requesting the petitioner to deposit the duty amounting to Rs. 30,71,328.06. It is the order dated 27-4-1991 and the notices dated 5-6-1991 and 27-6-1991 as also the memorandum dated 15-7-1991 which is under challenge in this petition under Article 226 of the Constitution.
3. We have heard Sri Bharat Ji Agarwal, Counsel appearing for the petitioner and Sri Vikram Gulati for the respondent.
4. The learned counsel appearing for the petitioner has assailed the impugned order dated 27-4-1991 and consequential notices as also Memorandum aforestated basically on the ground that the order impugned dated 27-4-1991 was passed in breach of principles of natural justice. In that the petitioner was issued neither any show cause notice nor was it afforded any opportunity of hearing before passing the final order which has the effect of modifying the classification provisionally approved by the Assistant Collector. The modification being to the detriment of the petitioner, it was urged, failure to comply with the principles of natural justice would vitiate the order. The learned counsel urged that averments made in paragraphs 24 and 27 of the writ petition to the effect that the petitioner was not afforded any opportunity of hearing and was not given any show cause notice before passing the impugned order have not been disputed by the respondent in their counter-affidavit.
5. Sri Vikram Gulati, learned counsel appearing for the respondent, on the other hand urged that the petitioner was in fact not entitled to any opportunity of hearing. He further urged that the finalisation of the provisional approval has been done after the receipt of the Chemical Examiner's Test Reports and after taking into consideration all connected matters to the issues. He has placed reliance on paragraph Nos. 11A and 36 of the counter-affidavit as well, wherein it has been specifically stated that it was not necessary to give a personal hearing or a show cause notice before finalisation of the provisional assessment but if in the opinion of the court there had been a denial of natural justice, the respondents are prepared to give full hearing. Counsel for the respondent also urged that the petitioner has an effective alternative remedy by way of appeal under Section 35 of the Central Excises & Salt Act, 1944, and since the Collector (Appeals) has very wide powers, it would be but proper for this court to relegate the petitioner to the remedy of appeal under Section 35 of the Act.
6. Having heard the counsel for the parties, we are of the opinion that since the Collector (Appeals) has the power to modify or annul the decision in question as would be evident from Clause (3) of Section 35A of the Act, it would be but proper to relegate the petitioner to avail of the remedy of appeal which is statutory remedy and quite effective and efficacious in that the Collector (Appeals) has the power to modify or annul the order under challenge after making such enquiry as he may deem necessary.
7. The ends of justice would be met if the petitioner is directed to file an appeal within six weeks from today and the Collector (Appeals) to decide the appeal on merits after affording an opportunity of hearing to the parties. It goes without saying that opportunity of hearing includes opportunity to lead such evidence as the parties may deem proper.
8. Accordingly the petition is disposed of with the observations that if the petitioner files an appeal under Section 35 of the Central Excises and Salt Act, 1944 within a period of six weeks from today, the said appeal shall be entertained and disposed of on merits treating the same within time and the petitioner shall not be required to deposit any amount under Section 35F of the Act. The Collector (Appeals) shall dispose of the appeal within a period of three months from the date of filing the appeal and the interim order dated 20-7-1991 will remain operative till the disposal of the appeal.