2017 (9) TMI 990 - HC - Central Excise

Maintainability of petition - alternative remedy of appeal - Held that - Although there exists a statutory alternative remedy, a writ petition is still maintainable, if it can be established that, the fundamental rights stand breached, or that the order in original is wholly without jurisdiction or that, the impugned order was passed in breach of the principles of natural justice, or that the impugned order is non-speaking, or that the order impugned is vitiated by fraud or malice - In the facts of the present case, non-consideration of judgments on behalf of the petitioners, ipso facto, does not lead one to infer that there is a failure of justice or that the principles of natural justice stands vitiated. The allegations of perversity levelled against the impugned order remains unsubstantiated. The reasons for imposition of penalty and the adjudication are appearing from the impugned order. Petition dismissed.

Summary

Issues:
Challenge to order passed by Commissioner of Central Excise; Consideration of reported court decisions in the impugned order; Applicability of statutory alternative remedy; Breach of principles of natural justice; Imposition of penalty higher than quantified liability; Maintainability of writ petition despite existence of statutory alternative remedy; Non-consideration of judgments cited by petitioners; Allegations of perversity in the impugned order.

Analysis:
The High Court of Calcutta dealt with a writ petition challenging an order passed by the Commissioner of Central Excise. The petitioners argued that the impugned order did not consider five reported court decisions, including two Supreme Court judgments, leading to a breach of natural justice. They also raised concerns about the penalty imposed being significantly higher than the quantified liability. The revenue contended that the impugned order provided adequate reasons for the penalties imposed and suggested that the petitioners' grounds could be raised before the appellate authority. The court noted that while the impugned order was reasoned and considered the show cause notices and replies, the statutory alternative remedy did not bar the writ petition if fundamental rights were breached or if there was a lack of jurisdiction, breach of natural justice, non-speaking order, or fraud/malice. The court emphasized that the appellate authority could correct errors in law or fact, and the writ court was not meant to substitute findings of the original order. The court found that the non-consideration of judgments cited by the petitioners did not automatically indicate a failure of justice or violation of natural justice. The court dismissed the writ petition, stating that the allegations of perversity in the impugned order were unsubstantiated, and the reasons for the penalty imposition were evident from the order.

In conclusion, the court held that it would not interfere in the writ petition as the impugned order considered the contentions of the parties, provided reasons for its findings, and did not demonstrate perversity. The court emphasized the role of the appellate authority in correcting errors and maintained that the writ court should not act as an appellate authority. The writ petition was dismissed with no order as to costs.