2020 (12) TMI 636 - HC - Central Excise

Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition - HELD THAT - 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 holding 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 Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter. Petition dismissed.

Summary

Issues:
Challenge to order passed under Customs Act, 1962 without availing statutory appeal remedy.

Analysis:
The judgment pertains to a case where the Petitioner challenged an order passed by the Respondent under the Customs Act, 1962 through a Writ Petition without availing the statutory appeal remedy provided under Section 129-A of the Act. The Respondent had passed the order-in-original on 28.05.2015, and the Petitioner was entitled to prefer an appeal within three months from the date of receipt, i.e., by 08.06.2015. However, the Petitioner did not opt for the appeal but directly approached the High Court through the Writ Petition on 04.09.2015, challenging the said order.

The judgment extensively refers to the legal position explained by the Hon'ble Supreme Court of India in Assistant Collector of Central Excise -vs- Dunlop India Limited [(1985) 1 SCC 260] regarding the exercise of discretionary powers under writ jurisdiction. The Court emphasized that Article 226 of the Constitution is not meant to bypass statutory procedures unless the statutory remedies are unsuitable for extraordinary situations or where the vires of the statute is in question. The Court noted that the Petitioner failed to provide an acceptable explanation for not utilizing the statutory appeal remedy available under the Act. It highlighted that the majority of petitions under Article 226 are filed to obtain interim orders and prolong proceedings, a practice that needs to be discouraged.

Ultimately, the High Court dismissed the Writ Petition, stating that it cannot be entertained due to the Petitioner's failure to avail the statutory appeal remedy. The Court refrained from delving into the merits of the case, emphasizing that disputed questions of fact should be adjudicated through the proper appellate process. The judgment concluded by closing the connected Miscellaneous Petition without imposing any costs on either party.