JUDGMENT K.C.Agrawal, A.C.J.
1.This petition under Article 226 of the Constitution of India has been filed by M/s Kapir International (Pvt.) Ltd., New Delhi for quashing the show cause notice dated 14.10.1985, order dated 18.1.1988 passed by the Collector of Central Excise, Meerut and the order of the CEGAT dated 22.7.1985.
2. M/s.-Kapri International (Pvt.)Ltd. were licensed for manufacturing of excisable goods. They received processed fabrics from M/s DIOR International Private Ltd. a sister concern of the petitioner, on payment of Central Excise Duty. Such fabrics used to be converted into various other items namely, pillow covers, bed sheets, bed covers, table cloth, etc., falling under T.I. 68. Cotton double bed sheets, cotton single bed sheets, cotton top covers and cotton table linen, etc., were also manufactured by the petitioner company. The petitioner submitted a classification list dated 4.4.1984 desiring that the classification of pillow covers and Rajai covers be done under T.I. 68 and that they be allowed to avail exemption under notification No. 77/83 dated 1.3.1983 as amended by notifications Nos. 151/83 dated 13.5.1983 and 56/84 dated 1.3.1984. The classification list was objected to by the Superintendent, Central Excise and as such a representation was made to the Assistant Collector, Central Excise, who rejected the representation by his order dated 3.8.1984. The operative portion of his order runs as. follows:
In consideration of all that has been said earlier I order that cotton double bed sheets (Printed), cotton single bed sheets (Printed), cotton tops (other than a made up item) and table linen shall be classifiable under T.I. 19 I(b) with liability to pay duty. The factory may, however, avail facility of proforma credit if admissible under Rule 56A of Central Excise Rules, 1944. The classification list shall be finalized and endorsed accordingly.
3. Against the said order, the petitioner preferred an appeal to the Collector, Central Excise (Appeals), New Delhi. The appeal was dismissed by the Collector on 8.1.1985 holding that bed sheets and table cloth are specifically covered within the definition of cotton fabric as given in T.I. 19, the effect of which was that duty was leviable under T.I. 19-I(b). The Collector also negatived the plea raised by the petitioner that the expression "any other process"' should take colour from the specific processes occurring in sub-item (b) by holding that the process of cutting and stitching could also be taken to be covered by sub-item (b). In substance, the Collector upheld the department's case that goods finally manufactured by the petitioner fell under item 19 by virtue of the fact that they were specifically covered under the definition of cotton fabrics and as such question of any double assessment did not arise in the case.
4. As against the judgment and order of the Collector, Central Excise (Appeals) dated 8.1.1985, the petitioner went up in appeal before the CEGAT, Special Bench 'D' New Delhi. The tribunal by its order dated 22.7.1985 dismissed the appeal holding that there was no merit in the same, as a result whereof the impugned orders were upheld. The tribunal took the view that the process undertaken by the petitioner should be regarded as manufacture and that they could not lawfully contend to the contrary.
5. After these proceedings were over, the petitioner did not challenge the classification by means of any further appeal, which they could do. As such, the order of the tribunal dated 22.7.1985 became final.
6. Thereafter a show cause notice dated 14.10.1985 was issued demanding duties of excise as mentioned therein. By the impugned order dated 18.1.1988 which has been challenged in the present writ petition, the Collector Central Excise, Meerut has called upon the petitioner to pay duties of excise as demanded in the show cause notice. The demand notice and the order of the tribunal dated 22.7.1985 have also been challenged in the writ petition.
7. We have heard learned counsel for the parties and are of opinion that the order passed by the Tribunal on 22.7.1985 negativing the challenge of the petitioner to the classification made by the department cannot be gone into the present proceedings under Article 226 of the Constitution, the first reason being that the writ petition against the said order is highly belated and there is no explanation for the delay in filing the writ petition. The appropriate item for challenging the order of the tribunal could be when the same had been pronounced. The petitioner was aware of the said judgment by which the petitioner's main grievance against the classification had not been accepted. The present writ petition was filed on 17th March, 1988. Of course, no limitation has been prescribed for filing of a writ petition but a person guilty of laches is not entitled to the discretionary relief under Article 226 of the Constitution.
8. The second ground, which disentitles the petitioner, is that since the Tribunal gave a decision classifying the items manufactured by the petitioner by taking all relevant evidence and applying correct principle of law, this court in exercise of its writ jurisdiction cannot go into the same. The evidence on record established that the petitioner was engaged in manufacture of bed sheets, bed covers, pillow covers, table linen, etc. From the tribunal's judgment, it appears that there was no dispute about pillow covers. It is so noted in paragraph 2 of its judgment. The dispute is about other items. The department's case was that the process of cutting, hemming and stitching undertaken by the petitioner amounted to process of manufacture and that bed sheets, etc., manufactured by them were new and distinct items from the cloth in running length out of which they were manufactured. The Assistant Collector and. later the Collector (Appeals) found that bed sheets etc., were covered by T.I.19. That was upheld by the Tribunal. In fact from the tribunal's order, it appears that the petitioner accepted that bed sheets, bed covers and table linen fell under T.I. 19, but they contended that these articles could not be subjected to duty again [the cloth in running length having already borne duty under item 19 -I(b)]. The Tribunal held:
since the products manufactured by the appellants are bed sheets, bed spreads, table cloths etc.--the articles specifically named in the tariff entry--and since they are of dyed/printed variety, there is no need to go into the meaning of the expression 'any other process' in Item 19-I(b) or in Section 2(f)(v). The reliance placed by the appellants on the principle of Ejustdem Generis is misplaced because no question of Ejusdem Generis arises here."
9. As said above, in the initial battle, the petitioner lost and it was found by all the authorities that the items manufactured by the petitioner fell under item 19(I)(b). The same controversy could not be raised in reply to the show cause notice dated 14.10.1985. In fact, this notice is consequential to the decision of the authorities regarding the classification matter. However, the show cause notice dated 14.10.1985 could be challenged by means of an appeal under Section 35B of the Central Excise and Salt Act, 1944. Learned Counsel for the petitioner was unable to tell us whether such an appeal had been filed. The fact that the petitioner could file appeal under the aforesaid provision is recited in the show cause notice itself. This is an additional ground for rejecting the writ petition praying for quashing the impugned show cause notice and the order of the Collector, Central Excise, Meerut dated 18.1.1988. For refusing to quash the order of the Tribunal dated 22.7.1985 we have already given reasons above.
10. Consequently, we find no merit in this petition and reject it summarily.