2021 (11) TMI 118 - HC - Central Excise

Maintainability of petition - availability of alternative remedy of appeal - seeking direction to the respondents to consider the application for remission - HELD THAT - There is no explanation forthcoming for not availing statutory remedy available under the Act against the impugned two actions within the prescribed period of limitation. That apart, the petitioner has made a vain attempt to club the impugned order dated 29.11.2018 passed under Section 11-A of the Central Excise Act and the order dated 23.9.2021 rejecting the application for remission of excise duty though both the orders besides being appealable under Section 35(1) and 35-B of the Excise Act respectively give rise to independent cause of action. Under the pretext of challenging the order rejecting remission of duty, the challenge to impugned order of assessment of excise duty cannot be entertained under Article 226 of the Constitution of India. The course of action adopted by the petitioner tantamounts to misuse of process of law disentitling to invoke equitable jurisdiction under Article 226 of the Constitution of India. Even otherwise, the contentions advanced in fact and in effect are in realm of facts including that of the alleged challenge to the authority to decline remission and require adjudication on facts. The same could be addressed by the adjudicating authority and not by this Court in extraordinary constitutional jurisdiction. Petition dismissed.

Summary

Issues:
Challenge to impugned order dated 29.11.2018 under Section 11-A of Central Excise Act, rejection of application for remission of excise duty, maintainability of writ petition under Article 226 of the Constitution of India.

Analysis:
The petitioner, a company, challenged the impugned order dated 29.11.2018 passed by the Assistant Commissioner confirming central excise duty amounting to ?35,07,936. The petitioner failed to file an appeal against this order within the prescribed limitation period. Additionally, the petitioner filed an application for remission of excise duty on finished goods destroyed in a fire accident in 2016, much beyond the six-month limitation period, which was later rejected on 23.9.2021.

The respondents filed an application seeking dismissal of the writ petition on various grounds, including the availability of appeal under Section 35(1) of the Excise Act against the assessment order dated 29.11.2018. The respondents argued that the High Court cannot issue a writ inconsistent with the legislative intent and beyond the period of limitation, citing a judgment of the Supreme Court.

The High Court noted that the petitioner failed to explain the delay in availing statutory remedies against the impugned actions within the prescribed limitation period. The petitioner attempted to challenge both the order dated 29.11.2018 and the rejection of the remission application dated 23.9.2021 in the same petition, although they give rise to independent causes of action. The Court held that challenging the remission order does not entitle the petitioner to challenge the excise duty assessment order under Article 226. The Court deemed this approach as a misuse of legal process, disentitling the petitioner from invoking equitable jurisdiction under Article 226.

Considering the facts and circumstances, the High Court found the writ petition without merit and dismissed it. The Court emphasized that the contentions raised by the petitioner pertain to factual issues that should be addressed by the adjudicating authority, not under extraordinary constitutional jurisdiction.

In conclusion, the High Court dismissed the writ petition, emphasizing the importance of adhering to statutory remedies within the prescribed limitation periods and the limitations of challenging different causes of action in a single petition under Article 226 of the Constitution of India.