2021 (8) TMI 436 - HC - Central Excise

Maintainability of petition without exhausting the right of appeal - Refund/Rebate claim - issue was taken up in the case of M/S RAGHAV INDUSTRIES LTD. VERSUS UNION OF INDIA AND OTHERS 2016 (3) TMI 550 - MADRAS HIGH COURT , the said judgment of the learned Single Bench was taken by way of an appeal before the Hon'ble Division Bench and the writ appeal is pending - HELD THAT - This Court is of the considered opinion that the pendency of an appeal before the Hon'ble Division of the High Court of Madras is not a bar for the appellant to prefer an appeal under the statute by following the procedures contemplated. If at all the benefit is conferred by the Hon'ble Division Bench or the matter is further taken before the Hon'ble Supreme Court, all such things cannot be a ground to keep the writ petition pending for an indefinite period. As of now, the claim set out by the petitioner was rejected by the High Court of Madras in M/S RAGHAV INDUSTRIES LTD. VERSUS UNION OF INDIA AND OTHERS 2016 (3) TMI 550 - MADRAS HIGH COURT despite the fact that the first respondent is in favour of the petitioner. All these aspects are to be considered as and when the points are considered either by the Department or by the Courts in an appropriate proceedings. Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy - The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarchy and the importance attached to such appellate institutions. The appellate institutions provided under the statute at no circumstances be undermined by the higher Courts. The appellate forums are the final fact finding authorities and more so, possessing expertise in a particular field. The point of delay may be an acceptable ground for the purpose of entertaining a Writ Petition. The practise of filing the Writ Petition without exhausting the statutory remedies are in ascending mode and such Writ Petitions are filed with a view to avoid pre-deposits to be made in statutory appeals and on the ground that the appellate remedies are time consuming. The petitioner is at liberty to prefer an appeal under the provisions of the Act in the prescribed format and by complying with the provisions of the Act and Rules. In the event of filing of an appeal, the Appellate Authority is bound to consider the same, pass orders on merits and in accordance with law and by affording an opportunity to the writ petitioner as expeditiously as possible - Petition disposed off.

Summary

Issues:
Challenge to original orders passed by Assistant Commissioner regarding duty rebate eligibility; Interpretation of Circulars and Rules governing duty rebate eligibility; Applicability of previous High Court judgment on similar matter; Entitlement to claim both duty rebate and duty drawback; Exhaustion of statutory appellate remedy before filing Writ Petition; Judicial review under Article 226 of the Constitution; Importance of appellate forums in fact-finding and judicial review; Grounds for entertaining a Writ Petition; Directions for petitioner to prefer an appeal under statutory provisions.

Analysis:
The judgment concerns the challenge to original orders passed by the Assistant Commissioner regarding duty rebate eligibility for a petitioner manufacturing cotton yarn and exporting it. The petitioner claimed cash rebate for duty paid through capital goods under Rule 18 of Central Excise Rules, 2002. The petitioner argued that the Board's Circular clarified eligibility for rebate based on capital goods credit. However, a previous High Court judgment noted that availing duty drawback on exported goods precludes entitlement to rebate under Rule 18 to avoid double benefits.

The Court emphasized the distinction between duty rebate and duty drawback governed by different rules. It highlighted that the petitioner's benefits fell under two statutes, making them ineligible for both rebates. The judgment underscored the need to consider statutory provisions before claiming multiple benefits and rejected the petitioner's claim based on this analysis.

Regarding the exhaustion of statutory appellate remedy, the Court stressed that filing a Writ Petition before pursuing the appeal is an exception necessitating imminent threat or gross injustice. It cautioned against bypassing appellate forums, emphasizing their role as final fact-finding authorities with expertise in specific fields. The Court advised the petitioner to follow the prescribed appeal process to ensure due consideration and expeditious resolution.

In conclusion, the Court disposed of the Writ Petitions without costs, directing the petitioner to pursue an appeal as per statutory provisions. The judgment highlighted the importance of adhering to appellate remedies, avoiding premature Writ Petitions, and respecting the fact-finding role of appellate forums in ensuring complete justice for parties involved.