2010 (8) TMI 723 - HC - Central Excise

Maintainability of writ petition - availability of alternative appellate remedy - Condonation of delay - held that - The Supreme Court in RAJ KUMAR SHIVHARE Versus ASSTT. DIRECTOR, DIRECTORATE OF ENFORCEMENT (2010 -TMI - 77919 - SUPREME COURT) has in unequivocal terms held that only under exceptional circumstances as laid down in para 42 of the judgment of the supreme court i.e., when there is complete lack of jurisdiction and violation of rules and principles of natural justices or when the tribunal acted under provision of law which is declared as ultra vires the High Court can exercise jurisdiction not withstanding the availability of alternative remedy and in other cases High Court should refuse to entertain the writ petition. As the relevant provision of law in the case dealt with by the Supreme Court is para material the same in the present case the observation of the Supreme Court that no writ petition can be entertained, when there is alternative remedy is applicable to the present case in equal force. On this score alone the relief sought for in this writ petition has to necessarily fail. Conversion of writ petition into appeal - held that - writ petition can be returned for being converted into CMA and the same may be after suitably converted so posted before the appropriate bench constituted for disposal of tax matters and if such course is adopted no serious prejudice is likely to be caused to the department/revenue, writ petition is filed within the period of limitation i.e., 180 days as specified u/s. 35G of Central Excise Act to prefer further appeal before the appellate Board, writ petition is directed to be returned for being converted into CMA u/s. 35G of the Central Excise Act and for being posted for disposal before the appropriate Bench.

Summary

Issues:
Challenge to final order dated 22-6-2006 in Final Order Nos. 528 to 531/2006, pre-deposit requirement for appeal, dismissal of appeals for non-compliance of pre-deposit condition, maintainability of writ petitions without exhausting statutory remedy u/s. 35G of Central Excise Act.

Analysis:
The petitioner, engaged in manufacturing HDPE/PP circular Woven Socks, sought to quash the Final Order dated 22-6-2006, which confirmed duty liability and imposed a penalty. The petitioner contended that payment through CENVAT credit was proper, but the Deputy Commissioner upheld the demand. The petitioner appealed, seeking to dispense with pre-deposit of duty and penalty. The first appellate authority directed pre-deposit of 50% of duty amount, leading to dismissal of appeals for non-compliance.

The petitioner argued that the appellate authority failed to consider the prima facie case and balance of convenience, making the pre-deposit condition onerous. The petitioner challenged the original assessment and cited a Bombay High Court judgment supporting their claim. The conflicting decisions necessitated a thorough examination, and the pre-deposit condition rendered the statutory remedy ineffective.

The respondent opposed the reliefs, citing the writ petitions' non-maintainability without exhausting the statutory remedy u/s. 35G of the Central Excise Act. The lower appellate authority passed orders ex-parte due to the petitioner's non-appearance, leading to dismissal for non-compliance with the pre-deposit condition.

The court considered the maintainability issue, with the petitioner citing judgments allowing writ jurisdiction despite alternative remedies. However, the respondent relied on a Supreme Court judgment emphasizing exhausting appeal remedies before resorting to writ petitions. The court found the Supreme Court's observations applicable, leading to the writ petition's failure on this ground.

Despite the dismissal, the court acknowledged the petitioner's submission to convert the petition into a CMA for disposal before the appropriate bench, considering the petition's timely filing within the limitation period for further appeal.

In conclusion, the court ordered the writ petition to be returned for conversion into a CMA under Section 35G of the Central Excise Act for disposal before the appropriate bench, aiming to safeguard both parties' interests and resolve the long-pending litigation effectively.