2018 (11) TMI 1692 - HC - Central Excise

Maintainability of petition - availability of alternative remedy - Circular No.56/56/94 issued by the Board dated 14.09.1994 - territorial Jurisdiction - HELD THAT - There is no dispute to the fact that the petitioner is under the territorial jurisdiction of the respondent. Secondly, the perusal of the impugned order would show that the Adjudicating Authority has given a finding at Paragraph Nos.16.3 as well as 15.4 to bring the activities carried out by the petitioner as one of the manufacture . Whether such finding rendered by the Adjudicating Authority based on appreciation of the factual aspects of the matter is correct or not, is for the next fact finding authority to consider and decide viz., the First Appellate Authority and not necessarily for this Court to do the same while exercising the discretionary jurisdiction under Article 226 of the Constitution of India. In the absence of any jurisdictional error, I do not think that the petitioner is entitled to maintain the present writ petition, when admittedly, the impugned order was passed after issuing the show cause notice to the petitioner and hearing them. Therefore, it is evident that the Adjudicating Authority has passed the impugned order of assessment by following the principles of natural justice as well. Whether the contentions raised by the petitioner against the notice of proposal has been considered and decided in a proper and perspective manner, is again the issue touching upon the factual aspects of the matter, which can be raised and agitated before the Appellate Authority. When such statutory remedy is available to the petitioner, this Court is not inclined to entertain the present writ petition, more particularly, when the jurisdiction vested under Article 226 of the Constitution of India is discretionary one. This Writ Petition is disposed of, only by granting liberty to the petitioner to file a statutory appeal before the next fact finding authority viz., The Commissioner (Appeals), within a period of four weeks from the date of receipt of a copy of this order.

Summary

Issues:
Challenge to jurisdiction of the respondent in issuing impugned proceedings.

Analysis:
The writ petition challenges the order passed by the respondent, arguing that the petitioner is not engaged in manufacturing activities and therefore, the respondent lacks jurisdiction to levy duty. The petitioner contends that they are merely involved in printing sheets while job workers outside the respondent's jurisdiction fabricate signboards. Despite citing a circular to support their argument, the court finds no merit in the jurisdictional challenge. The court notes that the petitioner falls under the respondent's territorial jurisdiction and that the Adjudicating Authority has deemed the petitioner's activities as manufacturing. The court emphasizes that the issue of whether the activities constitute manufacturing is a factual matter to be determined by the First Appellate Authority, not the court under Article 226 of the Constitution of India. The court concludes that since the impugned order was issued after due process and there is no jurisdictional error, the petitioner must pursue the statutory appellate remedy before the Commissioner (Appeals).

The court rules that the petitioner is not entitled to maintain the writ petition as the impugned order was passed following principles of natural justice. The court highlights that the contentions raised by the petitioner can be addressed before the Appellate Authority, as it pertains to factual aspects rather than jurisdictional issues. Given the availability of a statutory remedy through appeal, the court exercises its discretionary jurisdiction under Article 226 and dismisses the writ petition. The court grants the petitioner the liberty to file a statutory appeal before the Commissioner (Appeals) within four weeks, emphasizing that the Appellate Authority should consider the appeal on its merits and in accordance with the law without being bound by the period of limitation. No costs are awarded, and the miscellaneous petition is closed.