2006 (4) TMI 153 - HC - Central Excise

Writ petition challenging Central Government order held maintainable under Section 35E

The High Court of Judicature at Bombay held that the writ petition challenging the order passed by the Central Government was maintainable as the ... Revisional authority acting as a Tribunal - judicial character of powers under Section 35E of the Central Excise Act, 1944 - maintainability of writ jurisdiction under Articles 226 and 227 against orders in exercise of judicial/tributary powers - administrative/policy decisions of the Central Government binding on subordinate authoritiesRevisional authority acting as a Tribunal - judicial character of powers under Section 35E of the Central Excise Act, 1944 - maintainability of writ jurisdiction under Articles 226 and 227 against orders in exercise of judicial/tributary powers - Whether a writ petition is maintainable to challenge an order passed by the Joint Secretary, Government of India, Department of Revenue, exercising revisional powers under Section 35E of the Central Excise Act, 1944 - HELD THAT: - The Court examined the scheme and nature of proceedings under Section 35E (and related provisions) and held that the revisional authority, by virtue of the statutory scheme, exercises powers of a judicial character and functions as a Tribunal required to act judiciously. Consequently, an order passed by such revisional authority is not a mere administrative or policy decision of the Central Government binding the State or subordinate officers; rather it is an adjudicatory order amenable to judicial review. The Court distinguished authorities relied upon by respondent No.1 concerning the principle that Government policy/administrative decisions are binding on subordinate authorities, observing that those principles do not apply where the Central officer is exercising statutory revisional/judicial powers. On that basis the preliminary objection that the Central Government or its subordinate officers cannot challenge a Central Government order was rejected and the writ was held to be maintainable for judicial review under Articles 226 and 227. [Paras 5, 6, 9]Preliminary objection that the writ petition is not maintainable is rejected; the order passed by the revisional authority under Section 35E is amenable to writ jurisdiction.Final Conclusion: The petition challenging the revisional order of the Joint Secretary (exercising powers under Section 35E of the Central Excise Act, 1944) is maintainable because the revisional authority acts as a Tribunal exercising judicial powers; the preliminary objection raised on the ground that the Government cannot challenge its own order is rejected. Issues:1. Maintainability of the writ petition challenging the order passed by the Central Government.2. Whether the revisional authority under Section 35E of the Central Excise Act acts as a Tribunal with judicial powers.3. Applicability of the decisions in the cases of State of Orissa v. Union of India and Hindustan Distilleries v. State of Maharashtra to the present writ petition.Issue 1: Maintainability of the writ petition challenging the order passed by the Central Government:The respondent raised a preliminary objection regarding the maintainability of the writ petition, arguing that the Central Government and its subordinate officers cannot challenge their own orders. The petitioner contended that the writ petition is maintainable as the revisional authority under Section 35E of the Central Excise Act acts as a Tribunal with judicial powers. The court analyzed the nature of powers exercised by the revisional authority and concluded that it acts as a Tribunal, thus making any order passed by it amenable to the writ jurisdiction of the Court under Articles 226 and 227 of the Constitution.Issue 2: Whether the revisional authority under Section 35E of the Central Excise Act acts as a Tribunal with judicial powers:The court examined the provisions of Section 35E of the Central Excise Act and the nature of proceedings before the revisional authority. It determined that the revisional authority, by the scheme of the Act, exercises judicial powers and is required to act judiciously. The court emphasized that the revisional authority acts as a Tribunal, dealing with disputes brought before it, and its powers have judicial complexions. Therefore, any order passed by the revisional authority consistent with legal principles is subject to the writ jurisdiction of the Court.Issue 3: Applicability of the decisions in the cases of State of Orissa v. Union of India and Hindustan Distilleries v. State of Maharashtra to the present writ petition:The court discussed the decisions in the cases of State of Orissa v. Union of India and Hindustan Distilleries v. State of Maharashtra cited by the parties. It differentiated the facts and issues involved in those cases from the present writ petition. The court concluded that the observations and principles from those cases were not directly relevant to the present matter. It clarified that the revisional authority, acting as a Tribunal, is distinct from the scenarios in the cited cases where the Government challenged its own decisions based on policy considerations.In summary, the High Court of Judicature at Bombay held that the writ petition challenging the order passed by the Central Government was maintainable as the revisional authority under Section 35E of the Central Excise Act acts as a Tribunal with judicial powers. The court rejected the preliminary objection raised regarding the maintainability of the petition and emphasized the judicial nature of the revisional authority's powers, making its orders subject to the writ jurisdiction of the Court. The court distinguished the cited cases from the present matter, concluding that their principles did not apply directly to the issues at hand.