2010 (9) TMI 417 - HC - Central Excise

Appeal - Condonation of delay - finding of the Tribunal that medical certificate not available in the record, as mentioned in the application for condonation of delay, contrary to the original record - order passed by the Tribunal, set aside and matter remitted to the Tribunal for passing appropriate order on application for condonation of delay in filing the appeal before the Tribunal after affording opportunity of hearing to the respective parties

Issues:
1. Dismissal of appeal by Tribunal due to default of appearance.
2. Petitioner's prayer to strike off Rule 20 of CESTAT (Procedure) Rules, 1982.
3. Availability of alternative remedy under Section 35G of the Central Excise Act, 1944.
4. Jurisdiction of the High Court to grant relief under Article 226 of the Constitution despite the existence of an alternative remedy.

Issue 1: Dismissal of appeal by Tribunal due to default of appearance:
The petitioner filed an appeal against the order of the adjudicating officer, which was dismissed by the Commissioner (Appeals). The petitioner then appealed to the Excise Tribunal, but the appeal was dismissed due to an ex-parte order citing a missing medical certificate in the application for condonation of delay. The petitioner argued that the rejection was erroneous as the medical certificate was available with the record. The respondent contended that the petitioner had multiple opportunities to rectify the defaults but failed to do so. The High Court observed discrepancies in the Tribunal's finding regarding the availability of the medical certificate and decided to remit the matter back to the Tribunal for a proper hearing.

Issue 2: Petitioner's prayer to strike off Rule 20 of CESTAT (Procedure) Rules, 1982:
The petitioner sought to strike off Rule 20 of the CESTAT (Procedure) Rules, 1982, which allows for the dismissal of appeals for default of appearance. The petitioner argued that this rule contradicts Section 35C of the Central Excise Act, 1944, which mandates that the Tribunal decides cases on merits even in cases of default of appearance. However, the High Court did not delve into this issue as the appeal was dismissed based on the absence of a medical certificate.

Issue 3: Availability of alternative remedy under Section 35G of the Central Excise Act, 1944:
The respondent contended that the petitioner had an alternative remedy of filing an appeal under Section 35G of the Act, 1944, against the Tribunal's order. The High Court acknowledged the availability of an alternative remedy but emphasized that the rule of exclusion of writ jurisdiction by an alternative remedy is a rule of discretion, not compulsion. The Court cited precedents to support the exercise of writ jurisdiction in specific circumstances, such as enforcement of fundamental rights or failure of principles of natural justice.

Issue 4: Jurisdiction of the High Court to grant relief under Article 226 despite an alternative remedy:
The High Court discussed the discretionary nature of Article 226 of the Constitution, emphasizing that the Court may grant relief even if an alternative remedy exists. The Court highlighted that the availability of an alternative remedy does not restrict the High Court's jurisdiction to grant relief under Article 226 in certain situations. The Court decided to allow the writ petition, set aside the Tribunal's order, and remit the matter back to the Tribunal for a proper hearing, considering the discrepancies in the Tribunal's findings and the petitioner's admission for hearing in 2008.

In conclusion, the High Court allowed the writ petition, set aside the Tribunal's order, and directed a rehearing of the matter before the Tribunal to ensure justice and proper consideration of the petitioner's appeal.

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