2021 (3) TMI 180 - HC - Central Excise

Maintainability of petition - availability of alternative remedy of appeal - an order of interim stay was granted on 17.9.2015, which continued to remain in force till the writ petition was disposed of - when the writ petition was taken up for hearing on 11.12.2020, the Court opined that the appellant should avail alternative remedy - HELD THAT - There have been several decisions of the Hon'ble Supreme Court which have held that when writ petitions are pending for several years and when they are taken up for final hearing, the Court should seldom relegate the party to avail the alternative remedy as it would be very harsh on the party to approach the statutory authority after several years. Precisely, in the instant case, this has happened and after nearly six years, the petitioner has been directed to avail the appeal remedy. Therefore no useful purpose would be served in directing the appellant to file an appeal before the Tribunal and more particularly when an argument was made before the adjudicating authority. The point, which was canvassed by the assessee would have wider ramification and may be applicable to other export oriented units also - Considering the fact that a clarification had been issued on 02.04.2008, it would be necessary for the Adjudicating Authority to examine as to the applicability of the said clarification qua the appellant's case. Therefore, we are inclined to remand the matter to the Adjudicating Authority for de novo adjudication and take a fresh decision on merits and in accordance with law. Appeal allowed by way of remand.

Summary

Issues:
Challenge to Order-in-Original dated 28.05.2015 passed by the Commissioner of Central Excise - Relegation to avail alternative remedy - Applicability of Directorate General of Export Promotion clarification dated 02.04.2008 - Remand for de novo adjudication.

Analysis:

1. The writ petition challenged the Order-in-Original dated 28.05.2015 passed by the Commissioner of Central Excise. The Court noted that no counter affidavit was filed by the Department. When the writ petition was taken up for hearing on 11.12.2020, the Court opined that the appellant should avail alternative remedy, considering it a rule of discretion for Constitutional Courts. However, the Court acknowledged the harshness of relegate the party to avail the alternative remedy after several years of pending writ petitions, as seen in previous Supreme Court decisions.

2. The Court observed that no useful purpose would be served in directing the appellant to file an appeal before the Tribunal, especially when an argument made before the adjudicating authority could have wider ramifications. The Commissioner's order lacked a finding on whether the submission made by the appellant merits consideration or not. The appellant's submission regarding the Directorate General of Export Promotion clarification dated 02.04.2008 was highlighted, indicating its potential relevance to the case.

3. The Directorate General of Export Promotion clarification dated 02.04.2008 was deemed significant by the appellant's counsel. The clarification addressed the benefits of exemption notification under section 5A of the Central Excise Act for EOUs, emphasizing the applicability of exemptions for computation of duty on DTA clearances by EOUs. The Court considered this clarification crucial and directed the Adjudicating Authority to examine its applicability to the appellant's case, leading to the decision to remand the matter for de novo adjudication.

4. Consequently, the Writ Appeal was allowed, setting aside the Order-in-Original dated 28.05.2015 and remanding the matter back to the respondent for a fresh consideration. The respondent was instructed to afford an opportunity of personal hearing to the authorized representative of the appellant, consider their submission, and make a fresh decision on merits and in accordance with the law. No costs were awarded in this judgment, and the connected miscellaneous petition was closed.