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TMI Blog2010 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... nger, Counsel, for the Respondent. [Order per : Dhirendra Mishra, J.]. The petitioner has filed the instant petition and prayed for the following relief : That the Hon ble High Court may graciously be pleased to issue suitable orders, directions on writs including writs in the nature of mandamus, certiorari etc. (i) Quashing impugned order of Tribunal dated 19-9-2005 being Annexure P-11. (ii) Striking off Rule 20 of the C.E.S.T.A.T. (Procedure) Rules, 1982 in so far as it provides for dismissal of appeal for default of appearance. (iii) Directing Respondent Tribunal to restore the dismissed appeal of the petitioner to its original number. (iv) Quashing demand notice of department dated 9/10-11-2005 being Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944, which provides that the Tribunal will pass order on appeal after hearing the parties to the appeal and accordingly, in the cases of default of appearance, the Tribunal has to decide the case on merits. 4. Learned counsel for the petitioner submits that the petitioner had annexed covering letter (Annexure P/5) along with memo of appeal. In the covering letter, it is clearly mentioned that five copies of medical certificate have also been enclosed with the memo of appeal. Even otherwise, the check notes of Annexures P/6, P/7 P/8, prepared by the Registry, do not mention any default that medical certificate is missing. From perusal of the original record of the Excise Tribunal also, it is evident that medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts authorized representative appeared before the Tribunal for personal hearing. Finding of the Tribunal is not contrary to record. The instant writ petition is not maintainable also on the ground that the petitioner has an alternative and efficacious remedy of filing appeal against the order of the Tribunal under Section 35G of the Act, 1944 and the instant petition deserves to be dismissed on the ground of availability of alternative remedy. 6. Heard learned counsel for the parties and perused the material available on record as also the impugned order. 7. So far as contention of the petitioner that Rule 20 of the CESTAT (Procedure) Rules, 1982 deserves to be struck off on account of it being inconsistent with the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [Please see: Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and others, (2003) 2 S.C.C. 107]. 10. In the matter of State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another reported in (2005) 6 S.C.C. 499, the Hon ble Supreme Court, while dealing with the plea regarding alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted. 11. In the instant case, finding of the Tribunal that medical certificate is not available in the record, as mentioned in the application for condonation of delay, is contrary to the original record. The petition has already been admitted for hearing way back in the year 2008 and in these circumstances, we are of the opinion that it would not be just and proper to dismiss this petition at this stage on the ground of availability of alternative remedy. 12. In the result, we allow the writ petition, set aside the impugned order passed by the Tribunal and remit the matter to the Tribunal for passing appropriate order on application for condonation of delay in filing the appeal before the Tribunal after affording opportunity of he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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