ROB MATHYS INDIA PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE three writ petitions involve common issue, thus were heard together and are decided by common order.

(2.) LEARNED Counsel appearing on behalf of the petitioner Company submits that the petitioner Company is manufacturing Orthopedic Implants for rehabilitation of handicapped persons. Therefore, Company was exempted from the excise duty in view of the notification issued by the respondents. The specific reference is given to the Schedule providing Tariff under the relevant Chapter and referring Item No. 90.21 of the Tariff Act, 1985 (for short the Act of 1985'), it is submitted that items or implants manufactured for rehabilitation aids to handicapped persons were excluded from the purview of the excise duty. It is submitted that despite of exemption, the authorities have passed orders imposing excise duty on the implants manufactured by the petitioner Company. For the convenience the facts pertaining to writ petition No. 4031/1990 are referred herein. In this case, an order was passed by the Additional Collector imposing demand of excise duty on the petitioner Company along with penalty.

(3.) LEARNED Counsel appearing on behalf of respondent - Union of India, on the other hand, submits that the petitioner Company is having an efficacious and alternative remedy under the provisions of Central Excise Tariff Act, 1985. However, without exhausting such a remedy, these writ petitions have been filed and the admission of these writ petitions made ex -parte. Thus, the objection regarding maintainability of the writ petitions taken at the first instance while filing the reply. It is also stated that this is not a case where the exercise of the powers can be said to be without jurisdiction or without authority of law. It is further stated that in reference to Item No. 90.21 of the Tariff, an expert opinion was sought by respondent -Union of India from All India Institute of Physical Medicine and Rehabilitation under the Ministry of Health and Welfare to Government of India. The expert opinion shows that the implants manufactured by the petitioner Company cannot be said to be rehabilitation aids for disabled. Thus, the petitioner Company was not exempted from the excise duty. It is stated that the aforesaid issue is otherwise a question of fact, which has already taken note of and once a finding of fact has been recorded by the competent authority, it can be questioned in appeal, but the writ petition jurisdiction cannot be invoked for recording a finding of fact more so when there exists an expert and technical opinion from the experts. The reference of sub -para D of Para 8 of reply is made in the specific term. According to learned Counsel for the respondents, these writ petitions deserve to be dismissed on the preliminary ground itself and otherwise this Court cannot be asked to sit over the opinion given by the medical experts showing implants manufactured by the petitioner Company, not qualifying to the relevant item of the Tariff, which is exempted from the excise duty.