2025 (2) TMI 950 - HC - Central Excise

Maintainability of petition when efficacious statutory alternative remedy of appeal under section 35F of the Central Excise Act 1944 is available to the petitioner - principles of natural justice - HELD THAT - The Apex court in the case of Hindustan Coca Cola Beverage Private Limited Vs. Union of India and others 2014 (9) TMI 585 - SUPREME COURT has held that when a statute provides for statutory appeal the said remedy is to be availed by the litigating parties. In the case of Hameed Kunju vs. Nazim 2017 (7) TMI 1414 - SUPREME COURT the Apex Court has held that any petition under Article 227 of the Constitution of India should be dismissed in limine where there is statutory provision of appeal. The Apex court in the case of Ansal Housing and Construction Ltd. Vs. State of Uttar Pradesh and others 2016 (3) TMI 1435 - SUPREME COURT has held that when statutory appeal is provided then the said remedy has to be availed. In the present case it is evident that sufficient opportunity of hearing through virtual mode was provided to the petitioner on 4.7.2022 15.7.2022 and 10.8.2022 but neither the petitioner nor his authorised representative attended the personal hearings on the above dates. Thus the contention of the petitioner with regard to non-grant of opportunity of personal hearing is contrary to the record and is hereby rejected. Petition disposed off.

Summary

The petition under Article 226 of the Constitution of India was filed against the order dated 28.9.2022, confirming demands as proposed in the show cause notice and rejecting the petitioner's responses. The core issue was the maintainability of the petition without availing the statutory appeal under section 35F of the Central Excise Act, 1944. The petitioner argued that since no personal hearing was granted, they approached the Court. The Court referred to precedents emphasizing the importance of availing statutory remedies when provided. The Supreme Court's decision in The Assistant Commissioner of State Tax and others Vs. M/s Commercial Steel Limited highlighted exceptions where a writ petition can be entertained, such as a breach of fundamental rights or violation of natural justice. However, in the absence of such exceptions, the Court directed the petitioner to pursue the statutory remedy. The Court rejected the petitioner's contention regarding the lack of a personal hearing, noting that opportunities were provided but not utilized by the petitioner or their representative. Ultimately, the Court held that the petition should not be entertained and directed the petitioner to avail the alternative remedy through an appeal, allowing all grounds raised in the writ petition to be addressed in the appeal process.In summary, the Court emphasized the importance of availing statutory remedies when provided, rejected the petitioner's argument regarding the lack of a personal hearing, and directed the petitioner to pursue the alternative remedy through an appeal, allowing all grounds raised in the writ petition to be addressed in the appellate process.