2018 (9) TMI 572 - HC - Central Excise

Alternative remedy of Appeal - waiver of appeal remedy - Maintainability of petition - Exhausting the efficacious alternative remedy provided under the statute. Held that - The Appellate Authority being a quasi judicial functionary is empowered to adjudicate the merits as well as the legal grounds raised by the respective parties under the provisions of law. Thus, this Court cannot waive the appeal remedy in a routine manner. The appeal remedies are provided under the statute for a purpose and the very object in this regard cannot be deviated by entertaining the writ petitions under Article 226 of the Constitution of India in a routine manner. This Court is of a strong opinion that institutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner. Only on exceptional circumstances, the remedy of appeal can be waived, if there is a gross injustice or if there is a violation of fundamental rights ensured under the Constitution of India. Otherwise, all the aggrieved persons from and out of the order passed by the original authority is bound to approach the Appellate Authority - Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute. Exhausting the efficacious alternative remedy provided under the statute - Held that - When an effective alternative remedy is available, a writ petition cannot be maintained - Till the appeal is taken up for hearing, the respondents are directed not to initiate any coercive action against the writ petitioner. It is needless to state that the writ petitioner has to pay pre-deposit and the appeal to be submitted in the prescribed format. The writ petitioner is at liberty to prefer an appeal within a period of four weeks from the date of receipt of a copy of this order and on receipt of any such appeal, the Appellate Authority is bound to consider the same on merits and in accordance with law - petition disposed off.

Issues Involved:
1. Challenge to the impugned order dated 10.09.2015.
2. Availability and necessity of exhausting statutory appeal remedies.
3. Role of judicial review and separation of powers.
4. Conditions under which writ petitions can be entertained despite alternative remedies.

Detailed Analysis:

1. Challenge to the Impugned Order:
The petitioner challenged the order dated 10.09.2015 issued by the original authority under the provisions of the Act. The petitioner contended that the order is "non est in law" and that the original authority did not adhere to the basic principles and instructions issued by the Department. The petitioner argued that filing an appeal would be a futile exercise and would not provide a speedy remedy.

2. Availability and Necessity of Exhausting Statutory Appeal Remedies:
The court emphasized that the petitioner has an available statutory remedy to approach the Commissioner (Appeal I-Coimbatore) against the order passed by the Joint Commissioner. The court highlighted that appeal remedies are provided under the statute for a purpose and should not be waived routinely. The court stated that the appellate authority, being a quasi-judicial functionary, is empowered to adjudicate the merits and legal grounds raised by the parties under the provisions of law.

3. Role of Judicial Review and Separation of Powers:
The court underscored the importance of maintaining institutional respect and the doctrine of separation of powers. It noted that unnecessary or routine invasion into the statutory powers of competent authorities should be restrained by constitutional courts. The court cited several judgments to illustrate that the separation of powers between the legislature, executive, and judiciary is a basic structure of the Constitution and must be respected. The court asserted that judicial review should be limited where statutory remedies are available, and high courts should not interfere with appellate powers without valid and substantiated reasons.

4. Conditions Under Which Writ Petitions Can Be Entertained Despite Alternative Remedies:
The court discussed the legal principles settled by the Apex Court regarding the exhaustion of alternative remedies. It cited various judgments to explain that writ petitions should not be entertained if an effective alternative remedy is available, except in exceptional circumstances such as gross injustice or violation of fundamental rights. The court reiterated that the remedy of appeal should not be made an empty formality and that writ petitions should only be entertained in exceptional circumstances.

Conclusion:
The court directed that the petitioner is at liberty to prefer an appeal within four weeks from the date of receipt of the order. The appellate authority is bound to consider the appeal on merits and in accordance with law. Until the appeal is taken up for hearing, the respondents are directed not to initiate any coercive action against the petitioner. The writ petition was disposed of with no order as to costs.

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