1982 PLP 380 (PTD)

(Against the judgment of the Lahore High Court, dated 20‑10‑1981, passed in I. C. A. No. 374/81).

Ss. 35 & 36 read with Central Excise Rules, 1944, r. 10‑Appeal Adequate remedy‑Demand made to pay additional duty of about 4 lacs of rupees for failure to pay excise duty of Rs. 47 lacs in time-- Writ petition and Intro‑Court appeal dismissed on ground of avail ability of alternate adequate remedy by way of appeal‑Contended that appeal or revision could not be. an alternate adequate remedy in asmuch petitioners had to deposit additional duty before filing appeal‑Held : Considering amount of capacity duty payable by peti tioners Mill‑ mere fact of its being required to pay a much smaller amount before filing appeal does not render remedy inadequate. ORDER ASLAM RIAZ HUSSAIN, J.‑Chaudhry Textile Mills Ltd. (petitioner herein) seeks Leave to Appeal against the judgment of the High Court dated 20‑10‑1981, dismissing its I. C. A. in a tax matter.

2. The petitioner was required to pay about Rs. 47 lacs as Excise Duty on its production capacity which he paid in accordance with the schedule set by the Central Board of Revenue. He was, however, also required to pay another Rs. 3,97,738.40 on account of additional duty for failure to pay in time the duty pertaining to the period from July, 1971 to March, 1975 in pursuance of rule 10 of the Central Excise Duty Rules, 1944. The petitioner made a representation against this demand which was rejected by respondent No. I. He then filed a writ petition in the High Court which too was dismissed by a learned Single Judge, in limine, by order dated 13‑10‑1981, on the ground that adequate alternate remedy was available to the petitioner by way of appeal/revision before the Central Board of Revenue, under sections 35 and 36 of the Central Excises and Salt Act, 1944. The petitioner then challenged the order through an I. C. A. before a Divi sion Bench of the same Court. The I. C. A. was also dismissed on the same ground. Hence the present Petition.

3. The learned counsel for the petitioner submitted that the remedy by way of appeal/revision was not an adequate alternate remedy inasmuch as under the rules he is required to deposit the money before he can fill the appeal and secondly, that in view of the letter dated 1‑6‑1976, addressed to the Collector by. the Central Board of Revenue, stating inter alia that "the additional duty shall be separately payable as arrears", the appeal would be an exercise in futility. We are not impressed by these contentions. Considering the amount of Capacity Duty payable by the mill, the mere fact that it 'has to pay much smaller amount before filing an appeal, does not render the remedy inadequate. As for the letter issued by the Central Board of Revenue, it would certainly not bar the appellate authority from exercising its own indepen dent mind to the facts of the case and the law applicable thereto and the petitioner's apprehension in that behalf appears to be unfounded. For the foregoing reasons the petition is dismissed as being without merit. Petition dismissed