2007 (1) TMI 161 - HC - Central Excise

Initially in 1989 though alternative remedy by way of appeal against the order of Asst. Comm. was available still writ petition (W.P.) was filed, which was dismissed on the ground of alternative remedy - Petitioner again challenged the order of Comm. (A) by way of the present W.P. in 2002 though there was alternative remedy - Despite the W.P., petitioner filed appeal before Tribunal which was decided - after the decision of the Tribunal present W.P. has become infructuous, so dismissed

Summary

Issues:
- Challenge to the order of Commissioner (Appeals) and Assistant Commissioner
- Refund claim under Central Excise and Salt Act, 1944
- Alternative remedy of appeal under Section 35 of the Excise Act
- Amendment application for challenging CEGAT order
- Limitation period for filing reference application under Section 35-H of the Excise Act
- Dismissal of writ petition on the ground of alternative remedy
- Discretionary nature of writ petition as a remedy
- Precedents regarding the exhaustion of statutory remedies

Analysis:

1. The petitioner sought to challenge the orders passed by the Commissioner (Appeals) and Assistant Commissioner through a writ petition, requesting the quashing of these orders along with consequential relief. The dispute arose from a refund claim under the Central Excise and Salt Act, 1944, where the petitioner contended that the excise duty paid was in excess due to the inclusive selling price. The Assistant Commissioner rejected the refund claim as time-barred under Section 11-B of the Excise Act.

2. Despite the availability of an alternative remedy through an appeal under Section 35 of the Excise Act, the petitioner filed a writ petition in 1989, which was dismissed in 2001 on the ground of alternative remedy. Subsequently, the petitioner filed an appeal before the Tribunal, which was decided in 2002. An amendment application was filed later to challenge the Tribunal's order. The court considered the delay in filing the reference application under Section 35-H and the applicability of Section 5 of the Limitation Act.

3. The court analyzed the petitioner's argument that the writ petition should not be dismissed based on alternative remedy after admission. However, the court found that the petitioner did not opt for the appropriate remedy at each stage of the dispute resolution process. The court emphasized that the petitioner should have availed the remedy under Section 35-H within the stipulated time and that the delay in seeking reference application cannot be condoned.

4. Referring to the discretionary nature of the writ petition, the court cited the Apex Court's decision in Star Paper Mills Ltd. v. State of UP, highlighting that the writ petition is an extraordinary remedy to be exercised in exceptional circumstances where there is a breach of natural justice. The court also cited precedents such as Union of India v. M/s. Balrampur Chini Mills Ltd. emphasizing the need to exhaust statutory remedies before resorting to a writ petition.

5. Ultimately, the court concluded that the writ petition had become infructuous after the Tribunal's decision, making it liable for dismissal. Citing the case of U.P. Spinning Co. Ltd. v. R.S. Pandey, the court emphasized that statutory remedies should be exhausted unless exceptional circumstances warrant the intervention of the High Court. Consequently, the court dismissed the writ petition as having become infructuous based on the facts and circumstances of the case.