TaxTMI 
TaxTMI 
2003 (5) TMI 74
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....mpany has two manufacturing Divisions, one of them manufacturing Sugar and Molasses and the other manufacturing Industrial and potable Alcohol. The Sugar Division and the Chemical (Distillery) Division are located across a public road. They have separate Central Excise registration and are maintaining separate statutory records. The respondent wanted to have a common registration for the two divisions and, accordingly, applied to the jurisdictional Commissioner of Central Excise. The Commissioner, after enquiries conducted through his subordinate officers, rejected the application. The decision of the Commissioner was ultimately communicated to the respondent company by the jurisdictional Assistant Commissioner by letter dated 24th August, 2001, which was accompanied by a copy of letter dated 22nd August, 2001 of the Additional Commissioner (Tech.) of Central Excise addressed to the Assistant Commissioner. The two letters, read together, communicated to the respondent-company. That their application for common registration had been rejected by the Commissioner on the ground that the appellants two divisions could not be considered to be situated in the same place of business and, t....
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....to grant single registration for their two divisions. 5.By order dated 5th December, 2001, learned Tribunal has set aside the proceedings and has allowed the appeal and have directed the Commissioner Central Excise to issue central registration to the respondent-company in respect of the Sugar Division and Distillery division under reference. 6.In the order dated 5th December, 2001, the learned Tribunal had noted that in case of M/s. Jenson and Nicholson (India) Ltd. (supra) the factories were situated at different and distant places one at Panvel (near Bombay) and other at Calcutta. The company in that case had claimed S.S.I. exemption benefits by showing the clearances of the two factories separately and the department proposed to club the clearances and deny exemption benefits. That dispute ultimately arose before the High Court. The Court held that the exemption benefit had to be computed on the consolidated clearances of both the factories belonging to the same manufacturer. While dealing with the issue, the High Court referred to Rule 175 and observed, inter alia, if the same person wanted licences for carrying on business in more than one capacity, he had to submit sep....
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....er had two different factories situate at far flung places. In the instant case, the two Divisions of the same manufacture are situate in the same premises, separated only by a road. There is no comparison between the two cases. The High Court's decision is not applicable to this case. The Trade Notice, which has been ignored by the lower authority, clearly lays down that two Sections or Departments of the same manufacturer. In the same premises separated only by a road, are entitled to single Central Excise registration. The term 'Division' is only synonymous with either of the terms section and 'department'. Therefore, the provisions of the Trade Notice are clearly applicable to the appellants' case and their application for single registration ought to have been allowed." 8.The respondents had raised the preliminary objection of alternative remedy for filing reference under Section 35H of the Central Excise Act as such according to the respondents, the present writ petition is not maintainable. 9.The following submissions have been made on behalf of respondents: (a) During the pendency of the present writ petition, the petitione....
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....o the High Court : Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days." 10.Learned Standing Counsel for the petitioners has submitted that plea of alternative remedy could not be persuaded for the following reasons : (i) The High Court cannot quash the order of the Tribunal. (ii) The High Court cannot grant stay order. (iii) The High Court cannot go into the factual aspects of the matter. (iv) The merits and demerits of the case cannot be gone into in reference under Section 35H. (v) The reference is not an alternative remedy. 11(A).The High Court cannot quash the order of the Tribunal.In this respect as submitted by the respondent that in a reference under Section 35H, the High Court cannot quash the order of the Tribunal is wholly misconceived. Se....
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.... Court given under Section 35H of the Central Excise Act or under Section 256 of the Income-tax Act. Hence, in view of the judgment of the Division Bench of this Hon'ble Court in the case of Chemicals & Allied Products v. Income Tax Appellate Tribunal, reported in 1988 U.P.T.C. 212, in view of the alternative remedy of reference [which in this case has been availed by the petitioners by filing a reference under Section 35H(1) of the Central Excise Act], the writ petition of the petitioners is no longer maintainable. 11(B).High Court cannot grant stay order in a reference : but the stay order can be granted only in a writ petition under Article 226 of the Constitution of India. It was argued on behalf of the respondent that even though a Constitution Bench of the Supreme Court of India in the case of State of Orissa v. Madan Gopal Rungta, reported in A.I.R. 1952 SC 12 has held that no writ petition is maintainable only for the purpose of stay order when the "writ petition which was entertained by the High Court under Article 226 for the purpose of interim relief, as the suit could not have been filed in view of Section 80, C.P.C., and unavoidable delay might result in irrepara....
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....Court under Section 35H. A Division Bench of this Hon'ble Court in the case of Madho Saran v. Inspecting Assistant Commissioner of Income Tax, Bareilly, reported in 1986 U.P.T.C. 959, has, dismissed the writ petition under Article 226 of the Constitution of India on the ground that the petitioner can approach the Appellate Tribunal for the purpose of stay during the pendency of the reference proceedings in the High Court, and the writ petition under Article 226 is not an appropriate forum or remedy. High Court cannot go into the factual aspects of11(C). the matter.-According to the respondents this contention of the petitioners is also not tenable, as even in a writ petition under Article 226 of the Constitution, the High Court cannot go into the questions of facts and the findings of fact recorded by the Tribunal. In the case of P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar, reported in 2001 (2) S.C.C. 54 at page 57, paragraph 9, the Supreme Court has held as follows : "It is not for the High Court to go into the factual aspect of the matter and there is an existing limitation to that effect….. The law is well settled to the effect that finding of th....
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.... direction that the Tribunal will rehear the appeal and decide it in the light of above observation and in accordance with law." Thus, the High Court has the power to remand the case also in reference proceedings. The Supreme Court in the case of Satlaj Cotton Mills Ltd. v. Commissioner of Income Tax, reported in 116 I.T.R. 1, and page 14 after considering the merits and demerits of the case and the factual aspects of the matter, has observed as follows : "The question whether the loss suffered by the assessee was a trading loss or capital loss cannot, therefore, be answered unless it is first determined whether these two amounts were held by the assessee on capital account or on revenue account or, to put it differently, as part of fixed capital or of circulating capital. We would have ordinarily, in these circumstances, called for a supplementary statement of case from the Tribunal giving its finding on this question, but both the parties agreed before us that their attention was not directed to this aspect of the matter when the case was heard before the Revenue Authorities and the Tribunal and hence, it would be desirable that the matter should go back to the Tribunal ....
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....e High Court. We are of the view that the High Court right in dismissing the writ petition directing the appellant to avail the statutory alternative remedy." 13.In the case of M/s. Titagarh Paper Mills v. State of Orissa, A.I.R. 1983 S.C. 603, the Supreme Court has held in para 11 at page 607 as follows : "If the petitioners are dissatisfied with the decision in appeal they can prefer a further appeal to the Tribunal under sub-Section (3) of Section 23 of the Act and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act……………Act provides for a complete measure to challenge an order of assessment ……………by mode prescribed by the Act and not by a petition under Article 226 of the Constitution". 14.The said decision has been followed in Assistant Collector of Central Excise v. Dunlop India Limited and others, 1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330 at page 332, para 3 as follows : "In Titagarh Paper Mills Co. Ltd. v. State of Orissa, A.I.R. 1983 S.C. 603, A.P. Sen, E.S. Venkataramaiah and R.B. Misra, JJ., held that where the statute itself provided the petitioners with an efficacious alt....
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....nd seek redress by filing a petition under Article 226 of the Constitution of India." 16.Admittedly the petitioners have filed recently Excise Reference Application No. 13 of 2002 on 16th May, 2002, under Section 35H of the Act, hence he is pursuing a parallel proceedings in respect of the same subject-matter arising out of the same order of the Tribunal in view of the judgment of the Supreme Court in the case of Jai Singh v. Union of India and others, reported in A.I.R. 1977 S.C. 898, para 4 in which the Supreme Court has held as follows : "..............the appellant has filed a writ, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion the appellant cannot pursue two parallel remedies in respect of the same matter at the same time." 17.In the case of C.L. Jain Woollen Mills, 1996 (84) E.L.T. 17, the Supreme Court has observed as follows : "While we agree with Mr. A. Subba Rao, the learned Counsel for the petitioner, that when the appeal before the Tribunal, preferred by the assessee himself, was pending, the High Court ought not to have interfered in the matter by way of a writ petition, in the facts and circumst....
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....icable for the reason that "the use of the machinery provided by the Act, not the result of that us, is the test." 24.While deciding the said case, the Supreme Court placed reliance on large number of judgments, particularly New Water Works Co. v. Hawkes Ford, (1859) 6 C.B.N.S. 336; Neville v. London Express Newspapers Ltd., 1919 A.C. 368, the Attorney General of Trinidad and Taboco v. Gordon Grant and Co., 1935 Appeal Cases 532 and Secretary of State v. Mask and Co., AIR 1949 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained unless the statutory remedies are exhausted. 25.In Whirlpool Corporation v. Registrar of Trade Marks, A.I.R. 1999 SC 22 and Tin Plate Co. of India Ltd. v. State of Bihar, AIR 1999 SC 74, the Supreme Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum. 26.In Sheela Devi v. Jaspal Singh, 1999 (1) S.C.C. 209, the Hon'ble Supreme Court has held that if the statute itself provides for a remedy of revision, wr....
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....ndia and others v. T.R. Verma, AIR 1957 SC 882, held that it is well settled that when an alternative and equally 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. The Supreme Court held that existence of an another remedy does not affect the jurisdiction of the Court to issue a writ, but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is exhausted, 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 therefor. 30.Yet another Constitution Bench of the Supreme Court, in State of U. P. and Others v. Mohammed Noor, A.I.R. 1958 S.C. 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would like provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a pro....
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....ter of recovery of tax etc., it would not interfere save under very exceptional circumstances. 34.In S.T. Mathuswami v. K. Natarjan and Others, A.I.R. 1988 S.C. 616, the Supreme Court held that the High Court cannot be justified to exercise the power in writ jurisdiction if an effective alternative remedy is available to the party. 35.In Kerala State Electricity Board and Another v. Kurien E. Kalathil and Others, 2000 (6) S.C.C. 293, while dealing with a similar issue, the Supreme Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy. 36.In A. Venkateshwaiah Naidu v. S. Chellappan and Others, 2000 (7) S.C.C. 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under : "though no hurdle can be put against the exercise of constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a constitutional remedy." 37.Similar view has been reit....
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....n. 41.In Harbans Lal Sahnia v. Indian Oil Corporation Ltd., 2003 (2) S.C.C. 107, the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the virus of an Act is challenged. While deciding the said case, the Supreme Court placed reliance upon its earlier judgment in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, A.I.R. 1999 S.C. 22. 42.This Court in 2002 (1) U.P.L.B.E.C. 705, Hon'ble S.K. Sen, C.J. and Hon'ble R.K. Agrawal, J., Pradeep Kumar Singh v. U.P. State Sugar Corporation and Another, has referred in its judgment, the following cases, (1991) 2 U.P.L.B.E.C. 898, Chandrama Singh v. Managing Director, U.P. Co-operative Union; A.I.R. 1971 S.C. 33, Hirday Narain v. Income Tax Officer, Bareilly; 1995 All L.J. 454, Dr. Bal Krishna Agrawal v. State of U.P. an....