2020 (12) TMI 480 - HC - Customs

Maintainability of appeal - alternative remedy of appeal is available - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition 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:
1. Failure to prefer appeal before Appellate Authority within statutory time limit.
2. Exercise of discretionary powers under writ jurisdiction.
3. Availability of alternative remedy under the statute.
4. Pre-deposit requirement for filing appeal before CESTAT.

Analysis:
1. The Respondent passed an order under the Customs Act, 1962, allowing the Petitioner to appeal within three months. However, the Petitioner did not appeal but filed a Writ Petition challenging the order. The court cited the legal position that Article 226 should not bypass statutory remedies unless necessary. The Petitioner failed to provide a valid reason for not using the alternative remedy available under the statute.

2. The court highlighted the need to discourage the misuse of Article 226 for obtaining interim orders and prolonging proceedings. Upon realizing the legal position, the Petitioner sought to withdraw the Writ Petition and pursue the statutory procedure. The court allowed the withdrawal with liberty to resort to the proper procedure.

3. The Petitioner acknowledged the statutory time limit for filing an appeal before the CESTAT and the pre-deposit requirement of a specified amount. The court clarified that the Petitioner could apply to the CESTAT to consider the recovered amount under a bond as part of the pre-deposit. The CESTAT would then decide on the application based on merit and in accordance with the law.

4. The court dismissed the Writ Petition as withdrawn, granting liberty to the Petitioner to approach the CESTAT with the necessary clarifications. No costs were awarded in this case. The judgment emphasized the importance of following statutory procedures and utilizing alternative remedies provided under the law.