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TMI Blog2017 (8) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... d V. Bhavani Subbaroyan, JJ. For the Appellant : Mr. Joseph Prabakar ORDER ( Judgment of the Court was made by S. Manikumar,J ) Being aggrieved by the order, in Original Nos.36 to 48/2016 (R1), dated 28/6/2016, passed by the Deputy Commissioner of Service Tax, III Division, Service Tax II Commissionerate, Chennai, petitioner has filed W.P.No.32277 of 2016, praying for the issuance a writ of certiorarified mandamus, to quash the above said order and consequently, to direct the respondent therein to refund the amount. 2. Adverting to the averments and submissions, the writ Court, vide, order, dated 15/12/2016, declined to entertain the writ petition, on the grounds that there is an effective and alternate remedy. Writ Court, has further observed that if the writ petitioner were to take recourse to an alternative remedy, the concerned appellate authority, to decide the appeal with due expedition, uninfluenced by the fact that the writ Court has not interfered with the impugned order. 3. Being aggrieved, instant appeal has been field. 4. Though Mr.Joseph Prabakar, learned counsel for the appellant submitted that order in Original Nos.36 to 48/2016 (R1), dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Orissa, reported in 1983 (2) SCC - 433, held as follows: 11. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed. 9. The Hon'ble Division Bench of this court in a decision reported in 2005 (2 ) MLJ 246 (M/s.Nivaram Pharma Private Limited Vs. The Customs, Excise and Gold (Control), Appellate Tribunal, South Regional Bench, Madras and Others), has observed that a writ petition is not maintainable when there is a statutory remedy of appeal available more particularly in fiscal matters. Relevant paragraphs are extracted hereunder: 4. We are surprised that this writ petition was entertained at all. There was a clear alternative remedy against the order of the CEGAT dated 09.07.1997 by means of filing a Reference Application before the CEGAT under Section 35G(1) of the Central Excise Act (hereinafter re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 11. In United Bank of India Vs. Satyawati Tondon and Others {(2010) 8 SCC 110}, the Hon'ble Apex Court, at paragraph Nos.43 to 45, held as follows:- 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they do not only contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court Cases 602}, at para Nos.15 to 18, held as follows:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal Case {Thansigh Nathmal Vs. Supt. of Taxes, AIR 1964 SC 1419}, Titaghur Paper Mills Case {Titaghur Paper Mills Co. Ltd Vs. State of Orissa (1983) 2 SCC 433} and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fluenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010. 14. After considering a plethora of judgments, in Union of India and Others Vs.Major General Shri Kant Sharma and Another {(2015) 6 SCC 773}, at para36, the Hon'ble Apex Court held as follows:- The aforesaid decisions rendered by this Court can be summarised as follows:- (i). The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India (Refer: L.Chandrakumar Vs. Union of India (1997) 3 SCC 261 and S.N.Mukherjee Vs. Union of India (1990) 4 SCC 594. (ii). The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance of the machinery installed therein. By cryptic ad non-speaking order, the Tribunal has upheld the order passed by the Commissioner by applying the ratio of the decision of the Larger Bench in TISCO LTD (supra) without recording a finding of fact that the production carried out by the appellant was not the workshop situated within the factory or that the goods produced by it were not used for repair or maintenance of the machinery installed therein. It is not sufficient in a judgment to give conclusions alone but it is necessary to give reasons in support of the conclusions arrived at. The finding recorded by the Tribunal, being cryptic and non-speaking, is set aside and the case is remitted back to the Tribunal for a fresh decision by a speaking order in accordance with law after affording due opportunity to both the parties. 18. Even taking for granted that the original authority has passed a cryptic order or a non-speaking order, as contended by Mr.Joseph Prabakar, learned counsel for the petitioner/appellant, if any appeal is preferred by the writ petitioner, the appellate authority is bound to advert to the said submission. At this juncture, it could be seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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