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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... not operate as an absolute bar to the 'maintainability' of a writ petition and that the rule, which requires a party to pursue such remedy provided by a statute, is a rule of policy, convenience and discretion evolved by the judiciary rather than a rule of law. Therefore, in all the cases, the entities answering Article 12 of the Constitution of India cannot press into service the doctrine of alternative remedy as the China Wall against the invocation of writ jurisdiction. Failure to supply documents reled upon - opportunity of hearing not provided - violation of principles of natural justice - Recovery of short paid duty - HELD THAT:- Undisputedly, the petitioner has not been supplied with the documents, on the basis of which show cause notice was issued and despite repeated communications from the petitioner, the said documents were not provided due to which the petitioner would not be in a position to give reply to the show cause notice which culminated into passing of final order and judgment of recovery - even on remand, the respondent no.2 without adhering to the directions of Commissioner (appeals) i.e. without providing requisite documents and in the absence of aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 confirming the demand of Rs. 7,14,282/- and levied penalty also. Petitioner thereafter preferred an appeal against the order of recovery before the Commissioner(Appeals) vide appeal no. 234-CE/IND/APPL/2022-2023 which stood allowed and the matter was remanded back to the respondent no.2 for fresh adjudication after complying with the principles of natural justice. Petitioner accordingly again requested the respondent no. 2 to provide all the relied documents (RUDs) to tender detailed response. Respondent no. 2 failed to provide the same. Thereafter, respondent no. 2 again passed another order of recovery dated 29.03.2024 confirming the recovery of Rs. 7,14,282/- without supplying the requisite documents relied upon and without providing opportunity of hearing in terms of the order passed in Appeal dated 06.12.2023. Hence, the preset petition has been filed. 3 . Learned counsel for the petitioner submitted that the action of respondent no.2 in passing the final order of recovery alongwith levy of penalty is illegal and arbitrary in as much as after issuing show cause notice against the petitioner on the basis of various documents, respondent no.2 ought to have supplied the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eming himself aggrieved by this order may appeal against the same to the Commissioner(Appeals) of CGST Central Excise. Hence, in the backdrop of various judicial pronouncements, petitioner ought to have availed the remedy of filing appeal for redressal of grievances. (iii) So far as the contention of learned counsel for the petitioner as regards opportunity of hearing being not afforded is concerned, it would be imperative to mention here that the order of adjudication was passed after affording property opportunity of hearing to the petitioner as is evident from the order itself as personal hearings have been fixed. (iv) The petitioner has suppressed the material fact regarding supply of documents and thus, there is no violation of Article 14 or 19(1)(g) or 21 of the Constitution of India. 5. In support of his contentions, learned counsel for the respondent has relied upon various judgments which are as follows: Alternative Remedy: Hindustan Coca Cola Bevereges Pvt. Ltd. Vs. Union of India reported in (2014) 15 SCC 44 Hameed Kanju Vs. Najim reported in (2017) 8 SCC 611 . Ansal Housing and Construction Ltd. Vs. State of U.P. reported in (2016) 13 SCC 305. Institute of Hotel Managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. *** 6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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