2010 (2) TMI 561 - HC - Indian Laws

Maintainability of this petition - if the first Appellate Authority had no jurisdiction and the subsequent appeal being continuation of that appeal, even the Tribunal may not have jurisdiction to grant relief - petitioner has alternative and efficacious statutory remedy of appeal - petition is dismissed with liberty to the petitioner to pursue such other remedy, as may be permissible in law, which will be decided on its own merits, in accordance with law Held that - petitioner were to take recourse of remedy of appeal, we hope and trust that the Appellate Authority will exclude the time spent by the petitioner in pursuing the present petition while computing the limitation.

Summary

Issues: Preliminary objection regarding maintainability of the petition, alternative statutory remedy of appeal, exclusion of time spent on present petition for limitation calculation.

Preliminary Objection - Maintainability of the Petition:
The judgment addresses the preliminary objection raised by the respondents regarding the maintainability of the petition. The order being challenged was passed by the Appellate Authority on an appeal filed by the petitioner before the Commissioners of Central Excise and Customs. The Appellate Authority informed the petitioner about the option to appeal before the Central Excise Service Tax Appellate Tribunal. The petitioner argued that since the Appellate Authority claimed no jurisdiction to pass an order on interest and that there was no provision for interest refund before a specific date, even the Tribunal might lack jurisdiction. However, the court found this argument unconvincing. It emphasized that the petitioner initiated the appeal process and challenged the Commissioner's order, which can be further contested before the Tribunal. The court dismissed the petition, advising the petitioner to exhaust the statutory remedy of appeal first, leaving all questions open for further consideration.

Alternative Statutory Remedy of Appeal:
The judgment highlights that the petitioner has an alternative and efficacious statutory remedy of appeal that should be pursued before resorting to a writ petition. The court emphasized that the petitioner should exhaust the appeal process first, as challenging the correctness of the order passed by the Commissioner (Appeals) through a writ petition is premature. The court dismissed the petition but granted the petitioner the liberty to pursue other permissible remedies in accordance with the law, indicating that all questions are left open for future consideration.

Exclusion of Time for Limitation Calculation:
In anticipation of the petitioner resorting to the appeal process, the court expressed hope and trust that the Appellate Authority would consider excluding the time spent by the petitioner in pursuing the present petition when calculating the limitation period for the appeal. This consideration aims to ensure that the petitioner is not disadvantaged by the time spent on the dismissed petition and that the limitation period for the appeal is adjusted accordingly.

This detailed analysis of the judgment provides insights into the court's reasoning regarding the maintainability of the petition, the importance of exhausting the statutory remedy of appeal, and the need for fairness in calculating the limitation period for future legal actions.