2019 (6) TMI 950 - HC - Central Excise

Maintainability of petition - alternative statutory remedy of appeal - Detention of goods - HELD THAT - There is no dispute to the fact that the main writ petition before the Writ Court was filed challenging only the consequential detention notice, dated 04.01.2019 with further direction to drop all further proceedings issued pursuant to the order in Original dated 09.01.2018. Needless to state that when an order in Original was passed against the petitioner by the competent authority, without challenging the same, the petitioner is not entitled to challenge the consequential proceedings viz., the detention notice. The petitioner is permitted to withdraw the main writ petition itself and accordingly, the writ petition itself is dismissed as withdrawn with liberty to file an appeal before the appellate authority challenging the order in Original.

Summary

Issues:
1. Modification of interim order passed by the Writ Court
2. Service of the order in Original to the petitioner
3. Entitlement to challenge consequential detention notice without challenging the order in Original
4. Maintainability of the Writ petition
5. Permission to withdraw the writ petition and file a statutory appeal before the appellate authority

Analysis:
1. The Writ Appeal challenged the interim order passed by the Writ Court, seeking modification of the condition imposed on the writ petitioner to deposit 40% of the demanded amount. The Court dismissed the modification petition, stating no change of circumstances or errors warranted a modification.

2. The Commissioner passed an order in Original against the petitioner, confirming a demand. The petitioner claimed the order was not served, only the detention notice was received. The petitioner challenged the detention notice in the writ petition, leading to the stay order.

3. The writ petitioner argued for modification of the condition, citing the statutory appeal process where only 7 ½ % of the duty demanded needs to be paid. The Court noted the challenge was to the detention notice, not the order in Original, making the writ petition potentially not maintainable.

4. The Court acknowledged the challenge was only to the detention notice, not the order in Original. Without challenging the original order, the petitioner might not be entitled to challenge the consequential proceedings. The Court allowed withdrawal of the writ petition with liberty to file a statutory appeal against the order in Original.

5. The Court permitted the petitioner to withdraw the writ petition and file a statutory appeal with an explanation for any delay. The appellate authority would then consider the reason for the delay and make appropriate decisions based on the circumstances presented by both parties. The case was disposed of without costs.

This detailed analysis covers the key issues and the Court's decision regarding the modification of the interim order, service of the order in Original, maintainability of the writ petition, and permission granted to withdraw the petition and file a statutory appeal.