2017 (4) TMI 645 - HC - Central Excise

Maintanability of appeal - what is subject matter of challenge in the petition is an Order-In-Original dated 28.12.2016 passed by the adjudicating authority - Held that - When there is an efficacious alternative remedy available under the statute, this court, would not ordinarily exercise powers under article 226 of the Constitution India unless it is pointed out that the order impugned is without jurisdiction, in excess of jurisdiction or that the authority has failed to exercise the jurisdiction vested in it or if the order has been passed in violation of the principles of natural justice. Before this court nothing has been pointed out to establish that this case relates to any of the above referred circumstances. Another notable aspect of the matter is that the impugned Order-In-Original has been passed against one M/s. Roma Industries and not against the petitioners - Even if that be so, the remedy lies by way of appeal under the provisions of the Central Excise Act, inasmuch in the absence of any jurisdictional error or violation of the principles of natural justice being pointed out in the impugned Order-In-Original passed by the Assistant Commissioner, the question of exercising powers under article 226 of the Constitution of India would not arise - Petition dismissed.

Summary

Issues:
Challenge to Order-In-Original dated 28.12.2016 passed by the Assistant Commissioner, Central Excise, Customs & Service Tax against M/s. Roma Industries. Jurisdiction of High Court under Article 226 of the Constitution of India. Liability of petitioners to pay dues of M/s. Roma Industries due to an undertaking given by Mr. Vikesh Mandviwala. Availability of alternative remedy under the Central Excise Act, 1944.

Analysis:

Issue 1: Challenge to Order-In-Original
The petition challenged the Order-In-Original dated 28.12.2016 passed by the Assistant Commissioner against M/s. Roma Industries. The petitioners argued that the recovery of dues assessed under the order might be sought from them, even though the order was against M/s. Roma Industries. The petitioners contended that the matter required consideration as per the no due certificate issued by the Assistant Commissioner in 2013. However, the High Court noted that an appeal lies to the Commissioner (Appeals) under the Central Excise Act, 1944, against orders passed by the adjudicating authority. The court stated that unless the order is without jurisdiction, in excess of jurisdiction, or passed in violation of natural justice, it would not ordinarily exercise powers under Article 226 of the Constitution of India. Since none of these circumstances were established, the court found no grounds for intervention.

Issue 2: Liability of Petitioners
The petitioners expressed apprehension that they might be held liable to pay the dues of M/s. Roma Industries due to an undertaking given by Mr. Vikesh Mandviwala, who did not have the authority to act on their behalf. The court emphasized that if the petitioners believed they were wrongly implicated, the appropriate remedy was to appeal under the Central Excise Act. Absent any jurisdictional error or violation of natural justice in the impugned Order-In-Original, the court held that the question of invoking Article 226 of the Constitution did not arise. The court clarified that the petition was dismissed due to the availability of an alternative statutory remedy and not on the merits of the impugned order.

Conclusion:
The High Court summarily dismissed the petition, directing the petitioners to pursue appropriate proceedings before the relevant authority. The court highlighted that it had not examined the merits of the Order-In-Original and that if the petitioners availed the statutory remedy by filing an appeal, it would be considered on its merits in accordance with the law.