A.G. Qureshi, J.

1. The petitioners in this petition are limited companies registered under the provisions of the Indian Companies Act, 1956, having their offices at Indore and factories at Pithampur, district Dhar. The petitioners are manufacturing HDPE woven sacks and for that purpose they have installed HOPE tape plants for manufacture of oriented tape (plastic tape). The petitioners made representations to the Assistant Collector, Central Excise, Indore Division, to the effect that the HDPE woven sacks are articles of plastic and are thus classifiable under Chapter 39 of the Central Excise Tariff Act, 1985. The contention of the petitioners was not accepted by the Assistant Collector, Central Excise, Division Indore (respondent No. 4). Therefore, he passed an order dated 11-1-1988 wherein the respondent No. 4 held that the HDPE strips of an apparent width of 5 mm are classifiable under sub-head. No. 5406.11 and of Polypropylene under Chapter sub-head. 5406.90 and fabrics thereof under Chapter heading 5408.00. It has further been held that the provisions of Notification No. 223/86-C.E., dated 3-4-1986 are no longer applicable as the term sacks produced on circular looms is nothing but sacks produced out of fabrics manufactured on circular looms. As such they are required to pay duty under Chapter 63.01 at 12 per cent ad valorem. The petitioners have filed appeals against the order of the Assistant Collector before the Collector (Appeals) Central Excise, New Delhi. But in the meanwhile, pending the decision of the appeals, they have filed this writ petition.

2. This Court, vide its order dated 1-12-1988 directed the Collector Appeals to dispose of the appeals expeditiously, preferably within a period of four months and after the disposal of the appeals copy may be filed before this Court. This Court had followed the procedure adopted by a Division Bench of the Gujarat High Court in Special Civil Application No. 4604 of 1987 filed by M/s. Arms Polymers Ltd, Ahmedabad. Accordingly, later on the order of the Collector Appeals was passed and after perusing the same the matter was finally heard by this Court.

3. The petitioners have challenged the order of the Assistant Collector dated 11-1-1988 (Annexure P-5) read with Corrigendum dated 15-1-1988 (Annexure P-6) and order of Collector Appeals (C.E.) New Delhi dated 28-2-1989 (Annexure P-21) on the ground that the HDPE tapes fall under Heading 39.20 of the Central Excise Tariff Act, 1985 and, therefore, the HDPE fabrics fall under Heading 39.26 and the HDPE sacks fall under Heading 39.23 sub-heading 3923.90. But the Assistant Collector, Excise has wrongly classified the goods of the petitioner. The grounds on which the aforesaid orders have been challenged are that the basic raw material for the manufacture of HDPE tapes is HDPE granules of non-textile grade; there is a difference between HDPE tape and textile tape, HDPE fabrics and textile fabrics and HDPE sacks and textile sacks; properties of textile material and non-textile material are different; the respondent No. 4 has ignored the principles of classifying the goods under the New Tariff Act, 1985 wherein all the goods have been classified under one head beginning with raw materials and ending with finished products. The Chapter and Section, according to the scheme of the being the same, the finished goods cannot be taken out of the Chapter wherein the raw material has been kept for the purposes of classification. The Central Excise & Gold Appellate Tribunal in the case of Shellya Industries, Bangalore v. Collector of Central Excise, Bangalore -1983 (14) Excise Law Times, 1827 has held that the HOPE woven sacks are well known articles of plastics. The Assistant Collector Central Excise and the Appellate Collector have not followed the aforesaid decision of the Tribunal which was binding on them by simply saying that in view of the New Tariff Act, 1985 the aforesaid decision is not of any relevance to the facts of the present case. According to the petitioners the HOPE woven sacks or plastic sacks are not textile sacks in view of the DGTD registration, letter of Textile Commissioner, report of Sasmira dated 17-2-1989, report of Professor P.K. Sengupta, University College of Science and Tech., Calcutta and contents of textile materials as has been explained in Annexure P-16 and the fact that in common parlance it is known as HDPE woven sacks or plastic sacks. It has further been averred that when a particular commodity is not defined in the itself, then the trade meaning of the commodity concerned has to be accepted. Recent judgments of the Supreme Court have been cited in support of the contention. It has also been pleaded that when any entry is subject to two interpretations, then the interpretation favourable to the petitioner has to be accepted. Therefore, the petitioners have prayed for quashing of the order of the Assistant Collector, Central Excise as confirmed by the Collector, Appeals of Central Excise with a further prayer that the HDPE sacks be classified under Chapter 39 of the Central Excise Tariff Act, 1985.

4. The respondent No. 4 has filed return and resisted the petition on the ground that this petition has been filed without exhausting the other channels available for redressing the grievance under the Central Excise Law. The petitioners instead of filing a petition before this Court should have filed an appeal before the Central Excise Gold Appellate Tribunal as has been provided by the Central Excise Act. Therefore, in view of the availability of alternative remedy itself this petition deserves to be dismissed.

5. On merits it has been stated that originally there was no controversy of classification because the petitioners had themselves filed the classification list under Rule 173-B of the Central Excise Rules, 1944 classifying the goods HDPE tapes, HDPE fabrics, HDPE laminated fabrics and woven sacks under Chapters 54,59 and 63 respectively of S. XI of the Textiles and Textile articles of the schedule to the Central Excise Tariff Act, 1985. The above classification was approved by the Assistant Collector, Central Excise and the petitioners have been paying Central Excise duty accordingly. Thereafter they have filed representation for change of classification which was rejected by the Assistant Collector, vide impugned order. In the representation a claim for MOD-VAT benefit was also made. According to the Revenue the petitioners used plastic granules as raw material for manufacturing woven sacks. This process involves manufacture of HDPE tapes/strips first and then fabrics in tubular form on circular looms and thereafter cutting the circular fabrics and stitching one or other sides for making sacks. If flat fabrics are required tubular fabrics are slitted before winding on reels. HDPE tapes manufactured by the petitioners are primarily sold as woven sacks. Sometimes the tapes and fabrics are also sold.

6. As regards the judgments of the Tribunal it has been stated that they all relate to the period before of introduction of Central Excise Tariff Act, 1985, but from 1-3-1986 the new Tariff Act has come into force, based on the harmonised system of nomenclature and the classification has to be decided on the basis of the Tariff Act, 1985. According to Head. No. 54.06 of the Schedule to the Tariff Act, in respect of strips, it has been very clearly mentioned as under:

"Strips and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm."

As such the HDPE/PP tapes of an apparent width not exceeding 5 mm fall under subheading No. 5406.00. Section XI of the Schedule to the Tariff Act is comprised of fourteen Chapters bearing number from 50 to 63. Therefore, the provisions of S. XI are applicable to these Chapters. It is evident from Note No. 1(c) to Section 11 that strip and the like of an apparent width exceeding 5 mm are not covered under this section. This necessarily means that the strips and the like upto 5 mm are covered by this section. Therefore, the respondents have not erred in any way in rejecting the representation of the petitioners. Similarly Note No.10 to Chapter 39 makes it abundantly clear that the expression strip amongst others appearing in Heading No. 39.06 also include HDPE and PP as defined in Note No. 2(D) to S. XI. Thus, a strip of synthetic textile material of an apparent width not exceeding 5 mm is correctly classifiable under sub-head. No. 5406-90. In respect of strip/tape the width thereof is the sole criteria which determines its classification. Therefore, the contention of the petitioners that irrespective of the width of the tapes the HDPE/PP tapes should be classified under Heading 39.20 is not correct.

7. Similarly from Note No. 1 to Chapter 46 also it is clear that woven sacks of plastic strip of apparent width exceeding 5 mm are classifiable under Heading 46.01 and not under Heading No. 39.23. It is also evident from Note No. 2(i) to Chapter 39 that this chapter does not cover plait, wicker work or other articles of Chapter 46. Similarly Note No. 1(c) to Section 11 also clarifies that Section 11 does not cover plaits or fabrics and other basket and wicker work of strips and like of an apparent width exceeding 5 mm since it falls under Chapter 46. As such the woven sacks made from the strips and the like synthetic material of an apparent width not exceeding 5 mm should be classifiable under Heading No. 63.01 and the woven sacks made from strips and the like of an apparent width exceeding 5 mm should be classified under Heading No. 46.01. Woven sacks of polymer of ethylene or proplyene or a combination thereof falling under Heading No. 46.01 or 63.01 are exempt from whole of the duty vide Notification No. 223/86-C.E., dated 3-4-1986 provided such woven sacks are not manufactured on circular looms. However, the petitioners are employing circular looms for manufacture of tabular fabrics which are cut into desired length and stitched into sacks/bags of required shape and size and they are marketed as Circular Woven Bags. As such they are not entitled to exemption from whole of the duty in terms of Notification No. 223/86-C.E., dated 3-4-1986. Therefore, it is not correct to say that HDPE tapes, HDPE fabrics and HDPE woven sacks are not textile material. Even according to ISI specifications the products of the petitioners are treated as textile material. It has also been stated that the Circular No. 32/85 dated 20-11-1985 of the Department of Revenue (Annexure-17) was issued according to the order of the Central Excise Gold Appellate Tribunals order No. 194/84-C dated 11-7-1983 passed in the appeal case of Shellya Industries, Bangalore. But that circular was under the old tariff. After the passing of the New Tariff Act the anamolies are removed and under Section 11, HDPE tapes of width not exceeding 5 mm are clearly classified under the head textiles and textile articles. Therefore, the circular based on the judgments of the CEGAT is of no avail. The registration certificate issued by the Government of India, Directorate General of Technical Development (Plastic and Polymers Directorate) New Delhi (Annexure-18) and letter from Textile Commissioner, Bombay (Annexure P-19) do not support in any way the classification of HDPE tapes of width not exceeding 5 mm because the plastic classification is based on the width of the strip or tape and not the components of the tape. The order of the Assistant Collector Central Excise and the Collector Appeals, Central Excise has been passed in view of the clear provisions contained in the Central Excise Tariff Act and not influenced by any trade notice of the department. Therefore, the petition should be dismissed.

8. The learned counsel for the petitioner Shri A.M. Mathur has strenuously urged that in view of the fact that the impugned order of the Assistant Collector, Central Excise has been passed in violation of the clear provisions of law and the judgments of the CEGAT and the Circular of the Board of Direct Taxes, it is manifestly illegal and such an order can be challenged directly before the High Court in a writ petition without availing of the alternative remedy. However, the petitioners also took a chance to approach the Collector Appeals, but the order of the Collector Appeals itself goes to show that the order has been passed in routine without the application of mind to the points raised by the appellants and without taking into consideration the documents and earlier judgments of the CEGAT. Therefore, it is a fit case wherein the Court should invoke its jurisdiction under Article 226/227 of the Constitution of India. In support of his arguments on this point Shri Mathur has placed reliance on various authorities of the different High Courts and the judgment of the Supreme Court in the case of A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Another : 1983 (13) ELT 1327 ] wherein it has been held as under:

"It is true that existence of an alternate remedy is a bar to the maintainability of a Petition under Article 226 of the Constitution unless there is a complete lack of jurisdiction in the officer of authority concerned or where the order has been passed in violation of principles of natural justice, but this rule is a rule of policy, convenience and discretion rather than that of law. Therefore, where the order levying duty at the higher rate is based on an incorrect interpretation of the tariff entry and that too on the Boards ruling, the alternative remedy being facility, would not operate as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India.:

9. Shri Mathur has also invited our attention to the copy of the order of the Gujarat High Court filed by the petitioners wherein the Gujarat High Court in the case of M/s. Arms Polymers Limited v. Union of India and Others (Sol. Civil Application No. 4610 of 87) wherein the Division Bench has held that the question being about the correct interpretation of the entry, the High Court can be regarded as a better and proper forum for deciding such questions and exactly in the similar facts and circumstances as of this case, has admitted the petition for final hearing. In the instant case also we have heard the case finally on merits, after perusing the order of the Appellate Collector and the aforementioned view taken by the Gujarat High Court.