2017 (7) TMI 1282 - HC - Central Excise

Maintainability of petition - availability of a statutory alternative remedy - breach of the principles of natural justice - Held that - Non-consideration of a relevant judgment by the adjudicating authority can be said to be an act in breach of principles of natural justice. Esser Steel 2016 (4) TMI 232 - CESTAT AHMEDABAD is relevant to the facts of the present case on the issue up for consideration before the adjudicating authority. In fact, in another proceedings as appearing from the supplementary affidavit, the adjudicating authority had taken into consideration the ratio of Esser Steel (Supra) and had held in favour of the assessee. Claim against the petitioner in the show-cause notice is similar to the one decided by the adjudicating authority as appearing in the supplementary affidavit. The matter is remanded to the adjudicating authority for fresh decision on merits - Petition allowed by way of remand.

Summary

Issues:
Challenge to an order in original dated May 05, 2017 in a writ petition.

Analysis:
The petitioner contended that despite having a statutory alternative remedy through an appeal, the writ petition should be allowed due to the impugned order's breach of natural justice principles. The petitioner argued that the order did not consider a relevant tribunal decision and a departmental notification. The petitioner also highlighted an order obtained through the Right to Information Act, where a similar issue was decided in favor of the assessee. The department, on the other hand, emphasized the availability of the statutory alternative remedy and claimed that the impugned order considered the petitioner's contentions.

The court noted that the existence of a statutory alternative remedy does not always bar the maintainability of a writ petition, especially if there is a breach of natural justice, lack of jurisdiction, perversity, malice, or fraud in the impugned order. In this case, the petitioner argued that the adjudicating authority's failure to consider a binding tribunal decision constituted a breach of natural justice.

The court agreed that non-consideration of a relevant tribunal judgment could amount to a breach of natural justice. It was noted that the tribunal decision cited by the petitioner was relevant to the case at hand and had been considered favorably in a separate matter by the same adjudicating authority. As a result, the impugned order was set aside, and the matter was remanded to the adjudicating authority for a fresh decision, with instructions to consider the relevant tribunal decision. Importantly, the court clarified that the authority could reach the same conclusion as the impugned order if warranted by the facts.

Consequently, the writ petition was disposed of without costs, and urgent certified copies of the order were to be provided to the parties upon request.