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TMI Blog2021 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ant should avail the alternate remedy available under the Act. The Writ Appeal stands dismissed and the appellants are granted 60 days time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, without reference to the limitation as the writ petition was filed before this Court in the year 2016, which is well within the period of limitation, had the appellants filed appeals before the Commissioner of Customs (Appeals) at the relevant point of time. - W.A.No.640 of 2021 And C.M.P.No.2840 of 2021 - - - Dated:- 25-2-2021 - Honourable Mr.Justice T.S. Sivagnanam And Honourable Ms.Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 3. Mr.Akhil.R.Bhansali, learned counsel for the appellants would vehemently contend that the learned Writ Court ought to have taken note of the fact that the appellants had approached the Writ Court on the ground that initiation of action on the impugned consignments is barred by law and cannot be issued on conjectures and surmises and that the responsibility to prove mis-statement and mis-declaration or fraud, as alleged, is on the Department and there is no shred of evidence or a credible reason to prove the allegation. By referring to various decisions, it is contended that the initial burden is on the Department to prove that the situation as envisaged in the proviso to Section 28 exists and when there are no ingredients for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by a Writ Court, despite availability of an alternate remedy, is a self imposed restriction. There have been many exceptions to the said rule, where the Courts have exercised jurisdiction. In a recent decision of the Hon'ble Supreme Court in the case of Maharashtra Chess Association Vs. Union of India and others reported in (2020) 13 SCC 285 , one of the issue was whether a private agreement can oust the writ jurisdiction of a High Court. While dealing with the said issue, the Court referred to the earlier decisions and observed as follows: 13. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court s wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v Election Tribunal, Kotah, the court highlighted the discretionary nature of the High Court s writ jurisdiction. The court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Court s territorial jurisdiction. The court stated: 14 The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant s writ petition, we must first address ourselves to whether, even in the absence of Clause 21, the existence of an alternate remedy would create a bar on the Bombay High Court entertaining the Appellant s writ petition. ............ 20. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v Mohammad Nooh , where Justice Vivian Bose observed: 10.In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal position, we hold that a writ could have been maintained by the appellant before this Court on the ground canvassed before it. 8. After elaborately hearing the learned counsel for the appellants and the learned Senior Standing Counsel appearing for the respondent, we are of the view that the issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act. 9. For the reasons, which we have assigned in the preceding paragraph, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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