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TMI Blog2010 (2) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... stions of fact - Appeal is allowed - 1850-1851 of 2003 - - - Dated:- 18-2-2010 - D.K. Jain, Dr. Mukundakam Sharma and R.M. Lodha, JJ. REPRESENTED BY : S/Shri B. Bhattacharya, ASG, K. Swami, Rahul Kaushik, Mrs. Anil Katiyar and B.K. Prasad, Advocates, for the Appellant. S/Shri S.K. Bagaria, Sr. Advocate, P. Kataki, Nitya Bagaria and Ms. Meenakshi Arora, Advocates, for the Respondent. [Order]. These two appeals are directed against the common judgment and order dated 25th February, 2002, passed by the High Court of Gujarat at Ahmedabad in Special Civil Applications Nos. 10588 and 10590 of 2001 [2004 (171) E.L.T. 160 (Guj.)]. By the impugned order, the High Court has set aside the two orders, dated 16th October, 2001 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f whether such plant and machinery is in use or not, or is in working condition or not, and the independent textile processor shall declare the original value of investment in such plant and machinery installed in his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or Cost Accountant. 4. Accordingly, in order to avail benefit of the said special procedure, the assessee filed an application with the Commissioner in the prescribed form, declaring a total investment in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted. 5. The Commissioner got the application verified through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the machines like Stenters etc. was also required to be gone into for determining whether the assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under Article 226 of the Constitution. According to the learned counsel, since an alternative statutory remedy by way of appeal before the Customs Excise Service Tax Appellate Tribunal (for short the CESTAT ) was available to the assessee, the writ petition should have been dismissed at the threshold. 8. We find substance in the contention of learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. 9. In Harbanslal Sahnia Anr. v. Indian Oil Corporation Ltd. Ors. - (2003) 2 SCC 107, enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus : ..............that the rule of exclusion of writ jurisdiction by availability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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