2017 (11) TMI 954 - HC - Customs

Maintainability of petition - alternative remedy of appeal - filing of a writ jurisdiction - whether the Writ Petition is maintainable under Article 226 of the Constitution of India, without exhausting the alternative remedy, under Section 35G of the CEA, 1944? Held that - Lack of jurisdiction would be ground, for invoking the extraordinary remedy, under Article 226 of the Constitution of India, which is not the one pleaded in this case. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement 2010 (4) TMI 432 - SUPREME COURT , the exceptions carved out are, where there is a lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal has acted under a provision of law, which is declared ultra vires and in such cases, notwithstanding the existence of such a Tribunal, the High Court can exercise its jurisdiction to grant relief - None of the exception is applicable to the case on hand. The present Writ Petition filed under Article 226 of the Constitution of India, is wholly misconceived and that the same is not maintainable - petition dismissed being not maintainable.

Issues Involved: Maintainability of the writ petition under Article 226 of the Constitution of India without exhausting the alternative remedy under Section 35G of the Central Excise Act, 1944.

Detailed Analysis:

Maintainability of the Writ Petition

1. Registry's Endorsement:
The Registry returned the writ petition with an endorsement questioning its maintainability, citing the availability of an appeal remedy under Section 35G of the Central Excise Act, 1944, and the Customs Act, 1962. The Registry referenced a prior order in W.P.No.36051/2004, which stated that writ petitions are not maintainable when an appeal remedy is available.

2. Single Judge's Observation:
When the writ petition was listed for maintainability, a learned single Judge noted the Registry's doubt regarding the maintainability of the writ petition against a final order passed by the CESTAT. The Registry required clarification from the petitioner on how the writ petition is maintainable given the appeal provisions under Section 35G of the Central Excise Act.

3. Petitioner's Argument:
The petitioner's counsel argued that the writ petition is maintainable based on the decision in Tiruchitrambalam Projects Ltd. Vs. CESTAT, Chennai, which cited the Supreme Court's decision in Raj Kumar Shivhare. The counsel contended that in exceptional circumstances, writ petitions are maintainable even when an alternative remedy exists.

4. Division Bench's Direction:
The Division Bench noted that writ petitions against CESTAT orders must be posted before Division Benches dealing with tax cases, not Single Judges. The Registry was directed to prepare a note on the maintainability of the writ petition and place it before the Division Bench.

Legal Precedents and Statutory Provisions

5. Alternative Remedy Principle:
The court referenced several Supreme Court decisions, including Union of India v. T.R. Verma, C.A. Ibrahim v. ITO, and Karnataka Chemical Industries v. Union of India, which held that when an alternative and efficacious remedy is available, the High Court should not exercise its writ jurisdiction under Article 226.

6. Hierarchy of Appeals:
The court emphasized that where a statutory hierarchy of appeals exists, the party must exhaust these remedies before resorting to writ jurisdiction. This principle was reiterated in cases like A. Venkatasubbiah Naidu v. S. Chellappan and National Insurance Co. Ltd. v. Nicolletta Rohtagi.

7. Section 35G of the Central Excise Act:
The court elaborated on the provisions of Section 35G, which allows appeals to the High Court from orders passed by the Appellate Tribunal, provided the case involves a substantial question of law. The section outlines the procedure and conditions for filing such appeals.

Case-Specific Considerations

8. Petitioner's Dispute:
The petitioner argued that CESTAT passed two different orders on identical facts, justifying the writ petition. However, the court held that this alone does not warrant bypassing the statutory appeal process under Section 35G.

9. Supreme Court's Guidance in Guwahati Carbon Ltd.:
The court cited the Supreme Court's decision in Union of India v. Guwahati Carbon Ltd., which reiterated that writ jurisdiction should not be invoked when an adequate alternative remedy is available unless there are exceptional circumstances like lack of jurisdiction or violation of natural justice.

10. Exceptions Not Applicable:
The court concluded that the exceptions carved out in Raj Kumar Shivhare, such as lack of jurisdiction or violation of natural justice, do not apply in this case. Therefore, the writ petition is not maintainable.

Conclusion

11. Rejection of the Writ Petition:
The court found the writ petition to be wholly misconceived and not maintainable under Article 226 of the Constitution of India. Consequently, the writ petition pending in the SR stage was rejected.

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