2015 (5) TMI 1084 - HC - Central Excise

Constitutional vires of Section 35(1) of the Central Excise Act, 1944 - Held that - The petitioner had in fact challenged the order of the CESTAT by filing CWP-14559-2013 which was dismissed by an order and judgement of a Division Bench of this Court dated 29.10.2014. The petitioner challenged this judgement by filing a petition for Special Leave to Appeal being SLP (C)-10349-2015. By an order dated 01.04.2015, the Supreme Court allowed the appeal to be withdrawn with liberty to approach the appropriate forum for appropriate relief. It is pertinent to note that the constitutional vires had not been challenged in that writ petition. The liberty, therefore, to approach the appropriate forum was obviously to file an appeal against the order of the CESTAT and not another writ petition to challenge the same order - petitioner not permitted to file another petition albeit in different grounds - petition dismissed.

Summary

Issues:
Challenge to constitutional vires of Section 35(1) of the Central Excise Act, 1944.
Delay in filing appeal before the Commissioner (Appeals).
Dismissal of writ petition challenging the order of the CESTAT.
Permissibility of filing another writ petition after dismissal of earlier petition.

Analysis:
The judgment involves a challenge to the constitutional vires of Section 35(1) of the Central Excise Act, 1944. The petitioner contended that there was sufficient cause to condone the delay in filing the appeal before the Commissioner (Appeals). However, it was noted that the appeal was barred under Section 35(1) of the Act, and the orders of the Commissioner (Appeals) and the CESTAT were in conformity with the said provision and a previous Supreme Court judgment. The petitioner's attempt to challenge the order of the CESTAT through a writ petition was dismissed by a Division Bench of the High Court, and the subsequent Special Leave to Appeal was allowed to be withdrawn with liberty to approach the appropriate forum for relief. Notably, the constitutional vires had not been challenged in the initial writ petition, and the liberty granted was specifically for filing an appeal against the CESTAT order, not another writ petition.

The judgment further addresses the permissibility of the petitioner filing another writ petition after the dismissal of the earlier petition challenging the CESTAT order. It was deemed inappropriate to allow the petitioner to file another writ petition on different grounds following the orders passed in the previous writ petition. Consequently, the petition was dismissed by the High Court, indicating a restriction on filing another writ petition after the dismissal of a similar petition challenging the same order.