2018 (6) TMI 1423 - HC - Central Excise

Maintainability of petition - an appeal remedy was available - non compliance of the statutory requirement under Section 35F of the Central Excise Act, 1944 - Held that - The matter involves a commercial transaction and it is not as if the petitioner was not aware of their rights. A cursory reading of the Order-in-Original dated 27.2.2009, which runs to more than 55 pages, shows that extensive search and seizure operations were conducted in the place of business of the petitioner as well as the residential premises of the partners, statements were recorded, documents were seized and after analyzing the facts, an order came to be passed. There is also a finding to the effect that the petitioner created bogus records. This Court is of the view that the petitioner has not made out any case for exercise of discretion in their favour to maintain such a belated challenge to the Order-in-Original. Such a challenge is not maintainable - petition dismissed.

Summary

Issues:
Challenge to Order-in-Original in a writ petition without exhausting appeal remedy.

Analysis:
The petitioner challenged the Order-in-Original dated 27.2.2009 in a writ petition, which was deemed not maintainable as an appeal remedy was available. The petitioner had sought interim relief before the Customs, Excise and Service Tax Appellate Tribunal, which directed payment of a sum of ?1 Crore. Subsequent application for modification was rejected due to non-compliance with the Tribunal's order. The petitioner further challenged the Tribunal's decision in the High Court, raising substantial questions of law regarding pre-deposit and undue hardship under Section 35F of the Central Excise Act.

The Division Bench of the High Court dismissed the appeal, affirming the Tribunal's findings and the order to pay ?1 Crore. The petitioner's subsequent appeals to the Supreme Court, review petition, and curative petition were all dismissed. The Court noted that the Tribunal's order stood confirmed by higher courts, making it untenable to challenge the original order at this stage.

The Court declined to exercise discretion in favor of the petitioner due to the extensive search and seizure operations, findings of creating bogus records, and the rejection of specific claims by the Tribunal. The Court cited a previous case emphasizing judicial discretion in entertaining challenges against an Order-in-Original under Article 226 of the Constitution of India. Given the commercial nature of the transaction and the petitioner's awareness of their rights, the Court found no grounds to support the belated challenge to the Order-in-Original.

Ultimately, the Court dismissed the writ petition and related applications, citing lack of merit in the petitioner's case and the confirmed decisions of higher courts. No costs were awarded in the matter, bringing the legal proceedings to a close.