2021 (7) TMI 1063 - HC - Central Excise

Maintainability of petition - alternative remedy of appeal was not exhausted - question of facts - HELD THAT - Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy. The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarchy and the importance attached to such appellate institutions. The appellate institutions provided under the statute at no circumstances be undermined by the higher Courts. The appellate forums are the final fact finding authorities and more so, possessing expertise in a particular field - the finding of such appellate forums would be a valuable assistance for the purpose of exercise of judicial review by the High Court under Article 226 of the Constitution of India. The High Court cannot conduct a roving enquiry with reference to the facts and circumstances based on the documents and evidences. Based on the mere affidavits filed by the litigants, the disputed facts cannot be concluded. Thus, the importance of fact finding by the appellate forums is of more value for the purpose of providing complete justice to the parties approaching the Court of law. The Appellate Authority, being the Final Fact Finding Authority and those findings and facts of law would be of greater assistance for the High Court in exercise of its powers of judicial review under Article 226 of the Constitution of India. Thus, the petitioner is bound to prefer an appeal for the purpose of redressing his grievance. The Writ Petition stands disposed of.

Summary

Issues involved:
Challenge to order-in-original dated 09.03.2015, Adjudication of mixed questions of law and facts, Entertaining a Writ Petition before exhausting appellate remedy, Power of judicial review under Article 226, Importance of appellate forums, Practise of filing Writ Petitions without exhausting statutory remedies, Procedure for appeal under Section 35-B of the Central Excise Act, 1944.

Adjudication of mixed questions of law and facts:
The petitioner challenged an order-in-original dated 09.03.2015, seeking relief through a writ petition. The court emphasized that mixed questions of law and facts should be adjudicated by the Appellate Authority first. It clarified that the court cannot conduct a roving enquiry into disputed facts and that appellate authorities are the final fact-finding bodies. The court highlighted that findings by such appellate forums are crucial for judicial review under Article 226 of the Constitution of India.

Entertaining a Writ Petition before exhausting appellate remedy:
The court discussed the rule of preferring an appeal as opposed to entertaining a Writ Petition before exhausting the appellate remedy. It noted that while writ proceedings can be entertained before exhausting the appellate remedy, caution must be exercised. The court stressed that an imminent threat or gross injustice warranting urgent relief is necessary to bypass the appellate process. It emphasized that appellate remedies should not be diluted, and the statutory appellate authorities are crucial for fact-finding.

Power of judicial review under Article 226:
The court elucidated on the power of judicial review under Article 226 of the Constitution of India. It clarified that the High Court's role is to scrutinize the decision-making process rather than the decision itself. The court cautioned against routinely entertaining writ petitions without exhausting appellate remedies, as it could undermine the institutional hierarchy and the importance of appellate institutions. The court emphasized that appellate forums are final fact-finding authorities and their findings are valuable for judicial review.

Importance of appellate forums:
The court emphasized the significance of appellate forums as final fact-finding bodies possessing expertise in specific fields. It highlighted that the findings of such forums are crucial for ensuring complete justice to parties approaching the court. The court stressed that the High Court cannot conduct a roving enquiry based solely on affidavits and that the importance of fact-finding by appellate forums cannot be understated.

Procedure for appeal under Section 35-B of the Central Excise Act, 1944:
The court referred to the impugned order-in-original dated 09.03.2015, which clearly stated the procedure for appeal to the Customs, Excise and Service Tax Appellate Tribunal. The court reiterated that the petitioner must prefer an appeal under Section 35-B of the Central Excise Act, 1944, to address their grievance. It emphasized that the importance of appellate remedies should not be undermined by the courts.

In conclusion, the court directed the petitioner to prefer an appeal within four weeks from the date of the order, complying with the provisions of the Act. It instructed the Appellate Authority to consider the appeal on merits and in accordance with the law, affording the petitioner an opportunity, and disposing of the appeal expeditiously. The writ petition was disposed of with no order as to costs, and the connected Miscellaneous Petition was closed.