2017 (4) TMI 944 - HC - Central Excise

Maintainability of appeal - alternative remedy - dismissal on the ground that the order assailed in the writ petition was appealable order and there was alternative remedy under the CEA, 1944 - Held that - we cannot intervene on a point not specifically pleaded before us, on the basis of oral submission of the learned counsel on procedural issues, arising subsequent to delivery of the judgement by the learned First Court - We do not find any purpose would be served in keeping the appeal pending, having regard to our finding on merit of the case in the stay petition - appeal dismissed.

Summary

Issues involved: Appealability of the order, alternative remedy under the Central Excise Act, applicability of a circular issued by the Department of Revenue of Finance, Government of India, availability of appeal under Section 35B of the Central Excise Act, contention regarding the absence of a permanent Division Bench at the Tribunal, condonation of delay in preferring the appeal before the Tribunal.

Analysis:
The High Court of Calcutta addressed the appeal arising from the dismissal of a writ petition primarily on the grounds of appealability of the order and the existence of an alternative remedy under the Central Excise Act, 1944. The adjudication proceeding resulted in the confirmation of a demand for Central Excise duty, imposition of interest, and penalty on the company, along with the confirmation of a demand for Customs duty, interest, and penalty. The appellant challenged the order based on a circular issued by the Department of Revenue of Finance, Government of India, which was not considered during the initial judgment. However, the Court found no fault in the reasoning of the lower court and emphasized that the appellant's grievances should be raised before the statutory appellate authority. The Court noted the absence of any violation of natural justice principles warranting interference in the appeal and concluded that no error on record justified the intervention of the Writ Court.

During the hearing, the appellant raised concerns about the absence of a permanent Division Bench at the Tribunal and requested the condonation of delay in preferring the appeal. The Court clarified that such procedural issues should be addressed before the Tribunal, emphasizing that the appellate jurisdiction did not allow intervention on points not specifically pleaded. The Court dismissed the application for stay, highlighting that the exercise of condoning delay was discretionary and should be undertaken by the Tribunal post-appeal filing with a proper application. The appellant was advised to apply before the Tribunal as per the legal requirements.

Ultimately, the Court found no purpose in prolonging the appeal, considering the merit of the case and the findings in the stay petition. The Counsel for the Revenue waived notice of appeal, leading to the dismissal of the appeal based on the reasoning outlined in the order. No costs were awarded in the matter. The judgment highlighted the importance of following procedural requirements, addressing issues before the appropriate authorities, and respecting the discretionary powers of the Tribunal in matters of delay condonation.