2017 (10) TMI 1300 - HC - Central Excise

Maintainability of petition - alternative remedy of appeal - Section 129 A(1) of the Customs Act - time limitation - Held that - Considering the fact that the petitioner is a Government of India Corporation, and also due to the fact that the second respondent has been declared as insolvent, this Court deems it appropriate that it can exercise discretion in the case and grant time within which the petitioner can file an appeal before the CESTAT - while declining to entertain the writ petition, liberty is granted to the petitioner to file an appeal before the CESTAT - petition disposed off.

Summary

Issues involved:
1. Liability of a canalising agent to pay a demanded amount.
2. Availability of an alternate remedy under the Customs Act.
3. Time limitation for filing an appeal.
4. Exercise of discretion by the Court in granting time for appeal.

Issue 1: Liability of a canalising agent to pay a demanded amount
The petitioner, a canalising agent, argued that they should not be held liable to pay the amount demanded in the impugned order dated 18.04.2017. The Court did not delve into the correctness of the impugned order, emphasizing that disputed questions of fact should not be addressed in a writ petition. The petitioner was advised to utilize the appellate remedy available under Section 129 A(1) of the Customs Act before the CESTAT.

Issue 2: Availability of an alternate remedy under the Customs Act
The Court highlighted that the petitioner had an effective alternate remedy under the Customs Act by way of an appeal before the CESTAT. It was emphasized that the petitioner must exhaust this remedy instead of approaching the Court through a writ petition. The Court deemed it unnecessary to examine the disputed facts in the writ petition due to the availability of the statutory appellate remedy.

Issue 3: Time limitation for filing an appeal
The petitioner raised concerns that filing an appeal at that stage would be time-barred, considering the date of the impugned order. Acknowledging the unique circumstances, including the petitioner being a Government of India Corporation and the second respondent's insolvency, the Court exercised discretion. It granted the petitioner a specific timeframe to file an appeal before the CESTAT, ensuring that the Tribunal would entertain the appeal without regard to the limitation period if filed within thirty days from the date of the Court's order.

Issue 4: Exercise of discretion by the Court in granting time for appeal
In exercising discretion, the Court considered the petitioner's circumstances and the insolvency of the second respondent. Despite declining to entertain the writ petition, the Court granted liberty to the petitioner to file an appeal within a specified period. This act of discretion aimed to facilitate the petitioner's access to justice and the statutory appellate process, ensuring that the appeal would be considered by the CESTAT without being time-barred.

In conclusion, the High Court of Madras disposed of the writ petition without costs, allowing the petitioner to file an appeal before the CESTAT within a designated timeframe. The judgment exemplified the importance of exhausting statutory remedies and the Court's discretion in granting relief to parties in unique situations.