2010 (5) TMI 255 - HC - Central Excise

Writ petition maintainability - whether the Hon ble court of the first instance on the facts and circumstances of the case was justified in dismissing the writ petition on the point of existence of alternative remedy. Held that- alternative remedy does not render a writ petition non-maintainable.

Summary

Issues:
1. Dismissal of writ petition based on existence of alternative remedy.
2. Maintainability of the writ petition.
3. Consideration of alternative remedy in entertaining a writ petition.
4. Proper exercise of jurisdiction by the court in deciding on merits.

Analysis:
The High Court of Calcutta, comprising Chief Justice Mohit S. Shah and Justice Kalyan Jyoti Sengupta, addressed the appeal challenging the dismissal of a writ petition by a single judge. The single judge had dismissed the writ petition citing the existence of an alternative remedy, directing the matter to the Appellate Authority. The appellants argued that the writ petition was admitted earlier with a rider of maintainability, questioning the dismissal based on the alternative remedy. The court deliberated on whether the dismissal was justified solely on the grounds of an alternative remedy. The court emphasized that the existence of an alternative remedy does not make a writ petition non-maintainable, as entertainability is distinct from maintainability, involving aspects like jurisdiction. The court noted that the single judge should have considered the time limit for preferring an appeal, as delaying the matter could lead to the expiration of the limitation period.

The court reiterated the principle that the existence of an alternative remedy does not bar entertaining a writ petition and deciding it on merits when possible. In this case, the court found prima facie evidence of improper exercise of jurisdiction by the adjudicating authority. Consequently, the court set aside the impugned judgment and remitted the matter for fresh hearing, instructing the learned judge to decide the case on merits without forming any final opinion. The court emphasized the importance of maintaining the bank guarantee and renewing it as necessary, with the interim order standing vacated in case of non-renewal. The court directed the learned judge to expedite the proceedings, ideally concluding within three months of the order's notification, and ordered the provision of a certified copy of the order to the parties upon fulfilling the formalities.