2014 (5) TMI 381 - HC - Central Excise

Duty demand - Alternate remedy - Writ petition or appeal u/s 35 - Held that - Court called respondents to make an appropriate statement so as to enable the petitioner to avail of the alternate remedy and also seek interim protection therein. In all fairness, it is stated that the respondents and without prejudice to their rights and contentions shall not take any coercive measures to recover the duty and penalty demanded for a period of three months from today - In view of the remedy which is available and which we find equally efficacious that this Writ Petition is allowed to be withdrawn with liberty to file an Appeal - Appeal disposed of.

Summary

Issues: Preliminary objection to maintainability of the writ petition due to the availability of an alternate remedy before the Central Excise and Service Tax Appellate Tribunal.

Analysis:
The judgment by the High Court of Bombay involved a preliminary objection raised by the respondents regarding the maintainability of the writ petition. The respondents argued that the petitioners have an alternate and equally efficacious remedy available, that is, an appeal to the Central Excise and Service Tax Appellate Tribunal as per section 35B of the Central Excise Tax 1944. The respondents also highlighted the provision allowing the petitioners to file an application for stay and waiver of the pre-deposit of duty and penalty. The Court was informed that the respondents may resort to coercive means to recover the duty and penalty based on a communication received from the Office of the Superintendent of Central Excise. In response, the petitioner sought leave to withdraw the petition with liberty to file an appeal.

The learned Senior Counsel for the petitioner submitted that a communication from the Central Excise department had directed the petitioner not to shift/sell/transfer any machinery, components, or goods from their unit. It was argued that if coercive measures were taken by the respondents, the remedy of appeal and seeking stay would become ineffective. The Court, considering the circumstances, requested the respondents to make a statement ensuring no coercive measures would be taken for a period of three months to allow the petitioner to avail of the alternate remedy and seek interim protection. The statement made by the respondents' counsel was accepted as an undertaking by the Court.

Ultimately, the Court allowed the writ petition to be withdrawn with liberty to file an appeal, clarifying that no opinion was expressed on the rival contentions, leaving them open to be raised before the Appellate Tribunal. The writ petition was disposed of accordingly, acknowledging the availability of an equally efficacious remedy before the Appellate Tribunal and ensuring interim protection for the petitioner against coercive measures for a specified period.