2017 (8) TMI 595

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....by the Commissioner of Central Excise and Customs, Belapur. In the alternative the Petitioners have sought direction that Appeal filled by them should be heard without insisting on monetary pre-deposit under Section 35 of the Central Excise Act,1944. (The Excise Act). 3. The learned Counsel for the Respondent has raised a preliminary objection about the maintainability of the Petition. He has submitted that the Petitioners have an alternative remedy of filing a statutory appeal under Section 35B (1)(b) of the Excise Act, and hence they should not be permitted to invoke the writ jurisdiction of the Court. 4. Mr. Tapan Thatte, the learned Counsel for the Petitioners submits that, existence of alternative remedy is not a bar to writ juri....

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.... have considered the submissions advanced by the learned Counsels for the respective parties. The Petitioners herein have challenged the order passed by the Commissioner, which is Appellable under Section 35B(a)(b) of the Excise Act. Hence, there is no dispute that the Petitioners have the alternative and equally efficacious remedy to challenge the order passed by the Commissioner. In M/s. Baburam Prakash Chandra Maheshwari (Supra) the Apex Court has held that: "There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party a....

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.... the case may be, shall not entertain any appeal (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. Of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent o....