TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 954
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....ct 1944 or under Section 130 of the Customs Act 1962 when it applies. Therefore it may be clarified as to how the Writ Petition is maintainable U/Art. 226 Constitution of India for the reason stated supra." 2. When the writ petition came up for hearing for maintainability on 05.09.2017, a learned single Judge, has minuted as follows: "This matter is listed today under the caption 'for maintainability'. 2. Registry has raised a doubt as regards maintainability of this writ petition, as the petitioner has challenged a final order passed by the Customs, Excise and Service Tax Appellate Tribunal. It has been pointed out by the Registry that in terms of Section 35G of the Central Excise Act, as against the impugned order, an appeal lies to the Division Bench and therefore, the Registry wanted the petitioner to explain as to how the writ petition is maintainable. On an explanation being submitted by the petitioner on 01.8.2017, still the Registry has a doubt with regard to the maintainability and therefore, the matter is before this Court under the said caption. 3. Heard Mr.Raghavan Ramabadran, learned counsel for the petitioner. 4. The learned counsel for the petiti....
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....rticle 226 of the Constitution of India, without exhausting the alternative remedy, under Section 35G of the Central Excise Act, 1944, let us consider few decisions, on the aspect of availability of an alternative remedy and filing of a writ jurisdiction. (i) In Union of India v. T.R.Verma reported in AIR 1957 SC 882, the Hon'ble Supreme Court held that it is well settled that when an alternative and efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court, to issue a prerogative writ. Apex Court held that it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do otherwise. (ii) In C.A.Ibrahim v. ITO reported in AIR 1961 SC 609, H.B.Gandhi v. M/s. Gopinath & sons, reported in 1992 (Suppl) 2 SCC 312 and Karnataka Chemical Industries v. Union of India reported in 1999 (113) E.L.T. 17(SC) = 2000 (10) SCC 13, the Hon'ble Supreme Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedy, before resorting to writ jurisdiction. (iii) ....
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....ioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-Section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Principal Chief Commissioner of Central Excise or Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-Section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that noth....
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....epealed, or when an order has been passed in total violation of the principles of natural justice. ........... 15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent assessee. 16. In view of the above, we cannot sustain the judgment and order passed by the Division Bench of the High Court. Accordingly, we allow these appeals and set aside the impugned judgment." It is also worthwhile to extract the judgments considered in Guwahati Carbon Ltd.,'s case (cited supra), "8. Before we discuss the correctne....