2020 (12) TMI 475 - HC - Central Excise

Maintainability of appeal - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 01.03.2017 challenging the order passed by the Respondent - HELD THAT - There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER 1984 (11) TMI 63 - SUPREME COURT has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. Petition dismissed.

Summary

Issues:
Challenge to order under Central Excise Act, 1944 without availing statutory appeal remedy.

Analysis:
The judgment pertains to a case where the Petitioner challenged an order passed by the Respondent under the Central Excise Act, 1944 without availing the statutory appeal remedy provided under Section 35-B of the Act. The Respondent had issued an Order-in-Original determining the liability of the Petitioner. The order explicitly stated the Petitioner's right to appeal within three months to the Appellate Tribunal, with the possibility of condonation for delay with sufficient cause. However, the Petitioner chose to file a Writ Petition directly challenging the order without utilizing the statutory appeal mechanism.

The Court highlighted the legal principle that Article 226 of the Constitution is not intended to bypass statutory procedures unless extraordinary circumstances exist, such as questioning the vires of the statute or when public justice demands it. The Court cited the Assistant Collector of Central Excise vs. Dunlop India Limited case to emphasize that statutory remedies should not be circumvented, especially in revenue-related matters where alternative remedies are available. The Court expressed concern over the misuse of Article 226 petitions solely for obtaining interim orders and prolonging proceedings, stating that such practices need to be discouraged.

Ultimately, the Court refrained from expressing any opinion on the merits of the case due to the Petitioner's failure to utilize the statutory appeal mechanism before resorting to the Writ Petition. Consequently, the Court dismissed the Writ Petition as it could not be entertained, and closed the connected Miscellaneous Petitions without imposing any costs.