9911796707
TMI Blog2019 (6) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case, after hearing both the aforesaid learned counsel, this Court is unable to persuade itself to believe that the petitioner is able to demonstrate that it's case falls under any of the aforesaid exceptions. In other words, the facts and circumstances of this case, cannot be brought within the contours and four corners of the exceptions, adumbration of which have been made - this Court is of the considered view that owing to the factual matrix this is an appropriate case to leave it open to the writ petitioner to avail the alternate remedy by filing a Statutory Appeal to CESTAT under Section 35-B of the CE Act. Petition disposed off. - W.P.No.13836 of 2019 - - - Dated:- 3-6-2019 - Mr. Justice M. Sundar For the Petitioner : Mr.S.Murugappan For the Respondents : Ms.Hemalatha, Standing Counsel. ORDER Mr.S.Murugappan, learned counsel on record for the sole writ petitioner is before this Court. Ms.Hemalatha, learned Standing Counsel, accepts notice on behalf of both respondents, who are official respondents. 2. Though this writ petition is listed in the motion list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11-B of the CE Act. However, in the light of the nature of the order, which this Court is now passing, all questions pertaining to making refund claims in such a manner are left open. 7. Be that as it may, writ petitioner had carried forward the entire Cenvat credit available with them as on 30.6.2017 consequent to implementation of 'Goods and Services Tax' regime ('GST' for the sake of brevity) on and from 01.07.2017, in their Electronic Credit Ledger by filing what is referred to as TRAN-1. 8. Aforesaid refund claims made by the writ petitioner were negatived and the writ petitioner carried the same in appeal. The appeal was heard out by the jurisdictional Statutory Appellate Authority, i.e., Commissioner (Appeals-II). 9. The Appellate Authority, after hearing both sides, rejected the appeals vide order dated 17.12.2018 and this order was made in Appeal Nos.582 583/2018 (CTA-II) (hereinafter 'impugned order' for brevity). 10. Aggrieved by the impugned order made by the Appellate Authority, the instant writ petition has been filed assailing the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) without payment of duty; [(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No.2) Act, 1998:] PROVIDED FURTHER that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed [two lakh rupees]. [(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 47 of the Finance Act, 1984, before the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise], or, as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within fortyfive days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in subsection (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. [(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With regard to the alternate remedy, it is no doubt, not an absolute Rule. In other words, alternate remedy is a rule of discretion and not a rule of compulsion. Though alternate remedy is a Rule of discretion, in a long line of authorities, the Hon'ble Supreme Court has repeatedly held that exercise of writ jurisdiction on the teeth of alternate remedy, will be when the matter falls under certain specified exceptions. With regard to the long line of authorities, in the considered opinion of this Court one of the important case laws is United Bank of India vs. Satyawati Tondon [(2010) 8 SCC 110] . 16. In Satyawati Tondon case, Hon'ble Supreme Court inter alia held that this Rule of alternate remedy, has to be construed very strictly with regard to the tax, cess and other fiscal statute matters. 17. Be that as it may, in a recent judgment rendered by Hon'ble Supreme Court in Authorized Officer, State Bank of Travancore Vs. Mathew K.C. [ (2018) 3 SCC 85] , Hon'ble Supreme Court has also made an adumbration of exceptions and held that exceptions are as in Whirlpool Corporation case [ Whirlpool Corporation vs. Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
