2018 (9) TMI 251 - HC - Central Excise

Maintainability of petition - alternative remedy of appeal - penalty u/r 26 of the CER upon the petitioner as a partner of M/s. Tuffware Industries - Held that - The applicability of decisions relied upon by the petitioner, would have to be decided in the context of the facts and the law in the present case. This examination would more appropriately be done by the appellate Authority - in view of an efficacious alternative remedy available, we decline to exercise our extraordinary jurisdiction to entertain the petition under Article 226 of the Constitution of India. The issue urged before us would require examination and consideration at the hands of the appellate Authority. In these circumstances, bearing in mind the fact that the petitioner has approached this Court within a period of 60 days from the receipt of the impugned order and thereafter spent time in this Court bona fide prosecuting this petition, the delay in filing an appeal to the appellate Authority is condoned, if the same is filed within a period of 2 weeks from today - Petition disposed off.

Summary

Issues:
Challenge to order imposing penalty under Rule 26 of the Central Excise Rules - Availability of alternative remedy under Section 35 of the Central Excise Act, 1944 - Exercise of writ jurisdiction by the High Court under Article 226 of the Constitution of India.

Analysis:
The petition challenged an order dated December 2, 2016, passed by the Deputy Commissioner of Central Excise imposing a penalty under Rule 26 of the Central Excise Rules on the petitioner as a partner of a company. The High Court noted that the impugned order was subject to appeal under Section 35 of the Act. As an alternative remedy was available, the Court was not inclined to entertain the petition under Article 226 of the Constitution of India.

The petitioner argued that the High Court should exercise its writ jurisdiction as the impugned order was without jurisdiction, citing previous decisions of the Court holding that no penalty could be imposed. However, the Court found that the previous decisions referred to by the petitioner were not in relation to Rule 26 of the Rules, which was the subject of the current challenge. It was determined that the appellate authority would be more appropriate to examine the applicability of the decisions relied upon by the petitioner in the context of the present case.

Despite declining to entertain the petition, the Court acknowledged that the petitioner had approached the Court in good faith believing the impugned order to be without jurisdiction. Considering this, the Court allowed a condonation of the delay in filing an appeal to the appellate authority, provided the appeal was filed within two weeks. The decision to condone the delay was based on the precedent set by the Apex Court in a relevant case.

Ultimately, the Court disposed of the petition with directions for the petitioner to file an appeal within two weeks against the impugned order with the appellate authority, ensuring compliance with all necessary requirements, including the statutory deposit as per Section 35F of the Act. If these conditions were met, the appeal would be entertained on its merits.