9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (5) TMI 734 - HC - Central ExciseAttachment order - detention of goods - recovery of the disputed duty - As the petitioner has already elected to prefer an appeal to the CESTAT would this Court be justified in examining the merits of the order under appeal before the CESTAT in proceedings under Article 226 of the Constitution of India? - held that - The Doctrine of Election suggests that when two remedies are available for the same relief the party to whom the said remedies are available has the option to elect either of them. A.P. State Financial Corpn. v. Gar Re-Rolling Mills - 1994 (2) TMI 268 - SUPREME COURT OF INDIA . There are three elements to the Doctrine of election namely existence of two or more remedies; inconsistencies between such remedies and a choice of one of them. Transcore v. Union of India - 2006 (11) TMI 349 - SUPREME COURT OF INDIA . As the petitioner has elected to file an appeal which is pending before the CESTAT the merits of the order-in-original passed by the Commissioner ought not to be examined by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. As suspension of the first part of the impugned order of attachment would merely be an exercise in futility we refrain from doing so. We consider it appropriate therefore to direct the CESTAT to hear and dispose of the stay/waiver petition filed by the petitioner in accordance with law within a period of three weeks from today.
Issues Involved:
1. Legality of the order of attachment dated 23-6-2011. 2. Applicability of the C.B.E. & C. Circular dated 25-5-2004. 3. Jurisdiction of the High Court under Article 226 of the Constitution of India. 4. Doctrine of Election. 5. Futility of issuing a writ. Detailed Analysis: 1. Legality of the Order of Attachment: The petitioner challenged the order of attachment dated 23-6-2011, which was issued by the 1st respondent during the pendency of a stay application before the CESTAT. The petitioner argued that the order was illegal, arbitrary, and violated the C.B.E. & C. Circular dated 25-5-2004. The order of attachment included amounts demanded for periods that had not been adjudicated, specifically September 2010 to February 2011. The respondents contended that the action was justified under Section 11 of the Central Excise Act, as no show cause notice is required for arrears of revenue. 2. Applicability of the C.B.E. & C. Circular: The petitioner relied on the C.B.E. & C. Circular dated 25-5-2004, which precludes coercive recovery actions during the pendency of a stay application before the CESTAT. The respondents argued that the circular applies only to disputed duties and not to defaulted amounts. The court noted that the circular is binding on the Revenue as per the Supreme Court's ruling in Ranadey Micronutrients v. Collector of Central Excise, which held that while a circular remains in operation, the Revenue is bound by it. 3. Jurisdiction of the High Court: The court examined whether it should entertain the writ petition under Article 226 of the Constitution, given that the petitioner had already filed an appeal before the CESTAT. The Doctrine of Election, which suggests that when two remedies are available, the party must choose one, was considered. The court decided not to delve into the merits of the order under appeal before the CESTAT, as the petitioner had opted for the appellate remedy. 4. Doctrine of Election: The Doctrine of Election was applied, emphasizing that the petitioner had chosen to appeal to the CESTAT and therefore, the High Court should not examine the merits of the order under appeal. The court referenced A.P. State Financial Corpn. v. Gar Re-Rolling Mills and Transcore v. Union of India to support this position. 5. Futility of Issuing a Writ: The court considered whether issuing a writ would serve any useful purpose. Since the petitioner did not challenge the second part of the order of attachment, which pertained to a different amount, suspending the first part of the order would be futile. The court cited several judgments, including Pramod Kumar v. Medical Council of India and Munindra Kumar v. Rajiv Govil, to illustrate that a writ should not be issued if it would be ineffective or infructuous. Conclusion: The court refrained from suspending the first part of the order of attachment as it would be an exercise in futility. Instead, the court directed the CESTAT to hear and dispose of the stay/waiver petition filed by the petitioner within three weeks. The writ petition was disposed of without costs.
|
