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TMI Blog2021 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Single Bench has dismissed the writ petition on the ground of alternate remedy. 3. When we heard the appeal on 10.03.2021, it was pointed by the learned counsel for the appellant that the earlier directions issued by this Court on the very same issue in W.P.No.40100 of 2016 was yet to be complied with. Therefore, we were constrained to pass the following the order: "We have heard Mr.Joseph Prabhakar, learned counsel for the appellant and Mrs.R.Hemalatha, learned Senior Standing Counsel accepting notice for the respondents. 2. The above writ appeal is directed against the order dated 30.11.2020 passed by the learned Single Judge in W.P.No.5454 of 2017, which was dismissed on the ground that there is an alternate remedy available to the appellant by placing reliance on the decision of the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise Vs. Dunlop India Ltd. [reported in 1985 (1) SCC 260]. 3. It is not out of place to mention here that in the decision rendered by us in the case of Mahindra & Mahindra Ltd. Vs. Joint Commissioner (CT) [W.A.No.493 of 2021 dated 18.2.2021], we have considered the issue as to whether there is an absolute bar in ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that in respect of S.No.7, the dealer, on the very same issue approached this Court by filing W.P.No.40100 of 2016 which was heard and decided by one of us (TSSJ) on 01.12.2016 while sitting singly in the decision reported in (2017) 346 ELT 531. In that writ petition, the challenge was to the order in original directing recovery of central excise duty under Section 11A(i) of the Central Excise Act, 1944 along with interest. 7. In the instant case, the dealer relied upon the earlier Notification in Notification No.67/1995 dated 16.3.1995, the circular issued by the Commissioner of Central Excise dated 11.2.2016 and Notification No.25/ 2016-C.E. Dated 14.6.2016, by which, there was an amendment substituting the words 'free trade zone' into 'special economic zone'. 8. Even before the Writ Court, in the earlier writ petition namely W.P.No.40100 of 2016 filed by the appellant herein, the objection of the Department was that there is an alternate remedy available and that the writ petition should not be entertained. This objection was not sustained and the writ petition in W.P.No.40100 of 2016 was disposed of on 01.12.2016 in the following lines : "5. After hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and directions issued in the earlier writ petition namely W.P.No.40100 of 2016 have not been complied with and if it is in a revenue matter, obviously the appellant ought to have filed a contempt petition before this Court. We are further informed that on two earlier occasions, the representative of the dealer appeared for personal hearing and in spite of that, the directions issued earlier have not been complied with. Therefore, we can safely presume that the Department is not willing to comply with the order and directions issued in W.P.No.40100 of 2016 though they did not file any writ appeal against that order. 10. Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the respondents may be right in stating that the order was passed by a Single Judge. 11. However, the order dated 01.12.2016 in W.P.No.40100 of 2016 is pressed into service by the appellant herein, which was the writ petitioner therein and it is the same second respondent herein, who was the sole respondent in W.P.No.40100 of 2016. Therefore, this Court can take judicial notice of the fact that the order dated 01.12.2016 passed in W.P. No.40100 of 2016 was not complied with, which would give r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of directions issued by this Hon'ble Court in W.P.No. 40100 of 2016 dated 01.12.2016. 2. I state that in compliance with the direction of this Hon'ble Court we wish to bring forth the following for kind consideration in a tabulation form: SI Period Case Status/ Remarks as submitted by the Petitioner Present Status as submitted by the respondent 1 OIO No.24/10 dt.23.11.2010 April 2006 to March 2009 Appeal allowed by CESTAT, Chennai, in Final Order No.40150/2018 dated 19.1.2018 On Review, the Final Order dated 19.1.2018 of Hon'ble CESTAT was accepted by the Commissioner on Merits 2 OIO No.25/10 dt.23.11.2010 April 2009 to February 2010 Appeal allowed by CESTAT,Chennai,in Final Order No.40150/2018 dated 19.1.2018 On Review, the Final Order dated 19.1.2018 of Hon'ble CESTAT was accepted by the Commissioner on Merits 3 OIO No.02/2011 dt. 18.5.2011 March 2010-February 2011 Appeal allowed by CESTAT,Chennai,in Final Order No.40863-40865/2018 dated 09.03.2018 On Review, the Final Orders dated 09.3.2018 of Hon'ble CESTAT was accepted by the Commissioner on Merits 4 OIO No.36/2013 dt.14.10.201 3OIA No.19/2014 dt.10.11.2014 June 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ET353889431IN dated 05.12.2019. Therefore the averments of the petitioner that No further action has been taken incompliance with this Hon'ble Courts Order is unwarranted. 5.I therefore submit that in the above background of facts this Hon'ble Court may consider the present Writ Appeal and pass appropriate orders. Hence it is respectfully prayed that this Hon'ble Court may pass appropriate orders as deemed fit in the circumstance of the cases and thus render justice." 5. In terms of the averments set out by the Additional Commissioner, we find that the submission made by the appellant, stating that no orders have been passed in terms of the directions issued in the earlier writ petition, is a false statement. 6. The learned counsel for the appellant would plead that there is no mistake on the part of the counsel in making such a statement as the receipt of the order accepting the directions issued, was not informed by the client to the counsel and the counsel also genuinely believed the statement, because the affidavit, which was drafted in the writ petition, contained an averment that no orders were passed and this was signed by Mr.T.K.Ravi, son of K.Omana Marar, who is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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