2018 (10) TMI 830 - HC - Central Excise

Maintainability of petition - invocation of extra ordinary jurisdiction to interfere with the impugned order - Principles of Natural Justice - grievance of the Petitioner to the common impugned order dated 31st March, 2017 is that it has been passed without giving an opportunity to the Petitioner to cross examine the person whose statement is being relied upon by the Revenue. Held that - The jurisdiction of the Courts while exercising power under Article 226 of the Constitution is plenary. However, the Court has developed a self imposed rule that, in case, where there is an alternate efficacious remedy available, this Court would not normally exercise its discretion to entertain a Petition under Article 226 of the Constitution of India - Therefore, where the order is challenged is without jurisdiction (as opposed to an error within jurisdiction), or the process of decision making is such that it shocks the conscious of the Court and the interference on the above ground does not involve finding of fact and/or elaborate examination of evidence, then in the facts of the case, the Court may exercise its discretion to entertain the Petition. However, it needs to be emphasized that there can be no hard and fast rule in this matter. It is entirely for the Court to decide whether to exercise its discretion or not in the facts of the case before it. The impugned order dated 31st March, 2017 has considered and dealt with the issue of grant of cross examination to the Petitioner to come to the conclusion that in these facts, it need not be granted. Thus, if the Petitioner is aggrieved with regard to the manner in which the impugned order has refused to grant cross examination, that is an issue which could be appropriately agitated before the Appellate Authority i.e. the Tribunal. This for the reason that it would require factual determination of whether or not, in the facts and circumstance of the case, the cross examination as requested, ought to be given - in the present facts, the impugned order is not an order without jurisdiction, if at all, at the highest, it could be an error within jurisdiction. Therefore, a proper subject of appeal, before the Tribunal. There is no reason to exercise our extra ordinary jurisdiction to interfere with the impugned order dated 31st March, 2017 passed by the Commissioner of Central Excise. Petitioner does has an effective alternative efficacious remedy available under the Act - petition dismissed.

Summary

Issues involved:
Challenge to order dated 31st March, 2017 passed by Commissioner of Central Excise under Central Excise Act, 1944 without opportunity for cross-examination. Alternative remedy available under Customs, Excise & Service Tax Appellate Tribunal. Exercise of writ jurisdiction under Article 226 of the Constitution of India. Interpretation of Supreme Court decision in Commissioner of Income Tax v/s. Chhabil Dass Agarwal regarding exceptions to the rule of alternative remedy. Plenary jurisdiction of Courts under Article 226. Discretion to entertain a petition under Article 226 in the presence of an alternative remedy.

Analysis:

The petitions challenged a common order dated 31st March, 2017 passed by the Commissioner of Central Excise under the Central Excise Act, 1944. The primary grievance was the lack of opportunity for the petitioners to cross-examine the person whose statement was relied upon by the Revenue in the impugned order. The petitioners sought the Court to set aside the order on this ground, invoking Article 226 of the Constitution of India.

The Respondent-Revenue argued that an efficacious alternative remedy was available under the Act to challenge the impugned order before the Customs, Excise & Service Tax Appellate Tribunal. Reference was made to a previous order by the Court where a similar challenge was not entertained due to the availability of an alternative remedy. The Respondent contended that the facts and law in the present case were identical to the previous case, thus the petitions should not be entertained.

The Petitioner did not dispute the similarity in facts between the present case and the previous case. However, they argued that a Supreme Court decision not considered in the previous case supported the exercise of writ jurisdiction under Article 226. The Petitioner highlighted exceptions to the rule of alternative remedy as recognized by the Supreme Court, emphasizing instances where statutory authorities had not acted in accordance with the law or principles of natural justice.

The Court acknowledged its plenary jurisdiction under Article 226 but noted the self-imposed rule to refrain from exercising discretion when an alternative efficacious remedy was available. The Court emphasized that the decision to entertain a petition under Article 226 depended on the specific facts of each case. It was clarified that the Court may intervene if the order challenged was without jurisdiction or involved a process that shocked the conscience of the Court.

The Court found that the impugned order had considered the issue of cross-examination and concluded that it was not necessary in the present case. The Court determined that the refusal to grant cross-examination was a proper subject for appeal before the Appellate Authority, requiring factual determination. Consequently, the Court held that the impugned order was not without jurisdiction and could be appealed before the Tribunal, dismissing the petitions based on the availability of an alternative remedy.

In conclusion, the Court declined to interfere with the impugned order dated 31st March, 2017, as the Petitioner had an effective alternative remedy available before the Appellate Authority. The Court relied on previous decisions and the principle that when a statutory forum existed for redressal of grievances, a writ petition should not be entertained, ultimately dismissing all the petitions.