Challenged Order Dismissed for not Exhausting Appeal

The BOMBAY HIGH COURT dismissed the petition challenging the order of the Commissioner of Central Excise (Appeals) for lack of exhausting the alternative remedy of filing an appeal under Section 35B of the Central Excise Act, 1944. The Court noted that the impugned order did include personal hearings in 2015, where the petitioner did not appear, leading to the order being passed. The Court emphasized the need to address jurisdictional issues through appropriate channels under the Act. The petitioner was allowed to file an appeal to the Tribunal with a delay condonation application, with the assurance of consideration on its merits.

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Issues:
Challenge to order of Commissioner of Central Excise (Appeals) under Article 226 of the Constitution of India without exhausting alternative remedy of filing an appeal under Section 35B of the Central Excise Act, 1944.

Analysis:
The High Court of BOMBAY HIGH COURT addressed a petition challenging the order of the Commissioner of Central Excise (Appeals) dated 12th February, 2016, dismissing the petitioner's appeal from the order of the Assistant Commissioner of Central Excise dated 28th November, 2008. The Court noted the availability of an alternative remedy of filing an appeal under Section 35B of the Central Excise Act, 1944 to the Tribunal and expressed reluctance to entertain the petition without exhausting this remedy.

The petitioner contended that the impugned order lacked jurisdiction as it was passed in 2016 for an appeal filed in 2009 without granting a personal hearing. The Court observed that the impugned order recorded the holding of personal hearings on specific dates in 2015, where the petitioner failed to appear, leading to the order being passed. The Court emphasized that the issue at hand pertained to the determination of whether a hearing was granted before the impugned order was passed, indicating that such matters should be appropriately dealt with by the authorities under the Act.

Ultimately, the High Court dismissed the petition, allowing the petitioner to file an appeal to the Tribunal with a delay condonation application. The Court clarified that if such an appeal is filed, it would be considered on its own merits, leaving all contentions open for future consideration. The judgment underscores the importance of exhausting statutory remedies before seeking extraordinary jurisdiction under Article 226 of the Constitution of India.

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