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TMI Blog2016 (6) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petition on the ground that the writ petitioner approached the Writ Court without exhausting the efficacious alternative remedy. 2. According to the counsel for the appellant, the appellant company is engaged in the business of sale and installation of imported Uninterrupted Power Supply Systems (UPS). The appellant company imported one unit of Uninterrupted Power Supply System 200 KVA Delphys Green Power C6 with Cardboard/Pallet Packing , which falls under Customs Chapter Heading 85 04 40 90 vide Bill of Entry No.5709384 dated 11.01.2012 for value of Rs. 6,99,691.47. The imported machine normally attracts 7.5% Basic Duty, 10% CVD and 4% SAD apart from Cess. As per the Customs Notification No.25/2005 dated 01.03.2005, which provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order in Original No.21/2010 dated 11.01.2010, and also the Assistant Commissioner of Customs (Group 5B & C) allowing the exemption by order dated 27.4.2010, apart from the required explanation. However, the second respondent/Assistant Commissioner of Customs, Chennai, rejeted the claim of the appellant company by order dated 03.02.2012. 5. Aggrieved against this order, the appellant preferred a Writ Petition in W.P.No.4095 of 2012 before this Court. Ultimately, by order dated 07.01.2013, the Writ Petition was disposed of with a direction to the appellant to pursue alternative remedy of filing an appeal before the appellate authority. Between June 2012 and January 2013, the appellant imported UPS under various Bills of Entry and paid Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 129-A of the Customs Act, any person aggrieved by the order can prefer an appeal to the CESTAT. However, liberty was granted to the appellant to prefer appeal before the CESTAT. Aggrieved by this Order, the present Writ Appeal has been filed by the writ petitioner/appellant. 8. Mr.Joseph Prabakar, learned counsel appearing for the appellant would submit that the first respondent passed a common order in Appeal No.No.468-547/2003 dated 28.3.2013 confirming the findings of the second respondent holding that the order dated 11.1.2010 pertains to chargers to mobile phones and not the UPS 200 KVA without considering the similar order passed by the department. With regard to the end use point, he placed reliance on the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent dismissed the appeal along with other Appeals. It was held that the assessee being a trader, had not come out with any un-impeachable evidence to show that the impugned goods are directly used only in IT industries. Therefore, he is not specified with the materials and submissions made by the appellant with regard to the goods imported seeking exemption. As such, by a common order, the first respondent dismissed all the appeals preferred by the appellant. 12. Aggrieved by the order passed by the first respondent, the present Writ Petition No.18676 of 2013 was filed by the appellant challenging the said common order of the first respondent dated 28.3.2013 before this Court under Article 226 of the Constitution of India. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the revenue and not in favour of the assessee. In any event, these contentions could very well be raised before the appellate authority and the petitioner has not placed any material before that Court to justify its action in bypassing the appellate remedy available under the Act. 15. Further, in the case of National Insurance Co.Ltd., v. Nicolletta Rohtagi reported in (2002) 7 SCC 456, the Hon'ble Supreme Court held that appeal being a product of the statute, it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act. 16. The aforesaid decision of the Hon'ble Supreme Court was followed in the case of Sadhana Lodh Vs. National Insurance Co.Ltd., reported in (2003) 3 Supreme Court Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t jurisdiction when an efficacious alternative remedy is available. 21. This being the legal position, the Writ Petition filed under Article 226 of the Constitution of India by the appellant company was wholly misconceived and the same is not maintainable. Therefore, the learned Judge has rightly dismissed the Writ Petition as not maintainable in the light of the appeal remedy under Section 129-A of the Act. We find no infirmity in the order of the learned single Judge dated 6.11.2014 passed in W.P.No.18676 of 2013. 22. In the light of the above discussion, liberty is granted to the appellant to file an appeal, if so advised, under Section 129-A of the Customs Act before the CESTAT, within 3 weeks from the date of receipt of a copy of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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