2010 (2) TMI 699

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....arat at Ahmedabad in Special Civil Applications Nos. 10588 and 10590 of 2001 [2004 (171) E.L.T. 160 (Guj.)]. By the impugned order, the High Court has set aside the two orders, dated 16th October, 2001 and 25th October, 2001 passed by the Commissioner, Central Excise and Customs, Ahmedabad, denying to respondent No. 1 Company (hereinafter referred to as "the assessee") the benefit of special procedure for payment of Central Excise, viz. the Compounded Levy Scheme, under Rule 96ZNA of the Central Excise Rules, 1944 ("the Rules" for short). 2. The issue involved in both the appeals being identical, these are being disposed of by this common order. 3. To appreciate the controversy, a brief reference to the background facts woul....

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....t in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted. 5. The Commissioner got the application verified through the jurisdictional Deputy Commissioner, who found that the original value of investment in plant and machinery as on 1st March, 2001 was Rs. 3,09,63,727/-. Certain other discrepancies were also detected in the valuation report. Finally, after affording an opportunity of hearing to the assessee, the Commissioner came to the conclusion that : (i) since the assessee was having two Open Air Stenters which were being used for heat setting and drying of fabrics, they are excluded from the purview of the Special Procedure i....

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....een dismissed at the threshold. 8. We find substance in the contention of learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions' is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar ....

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.... enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus : "..............that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged." ....