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TMI Blog2003 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... two manufacturing Divisions, one of them manufacturing Sugar and Molasses and the other manufacturing Industrial and potable Alcohol. The Sugar Division and the Chemical (Distillery) Division are located across a public road. They have separate Central Excise registration and are maintaining separate statutory records. The respondent wanted to have a common registration for the two divisions and, accordingly, applied to the jurisdictional Commissioner of Central Excise. The Commissioner, after enquiries conducted through his subordinate officers, rejected the application. The decision of the Commissioner was ultimately communicated to the respondent company by the jurisdictional Assistant Commissioner by letter dated 24th August, 2001, which was accompanied by a copy of letter dated 22nd August, 2001 of the Additional Commissioner (Tech.) of Central Excise addressed to the Assistant Commissioner. The two letters, read together, communicated to the respondent-company. That their application for common registration had been rejected by the Commissioner on the ground that the appellants two divisions could not be considered to be situated in the same place of business and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registration for their two divisions. 5.By order dated 5th December, 2001, learned Tribunal has set aside the proceedings and has allowed the appeal and have directed the Commissioner Central Excise to issue central registration to the respondent-company in respect of the Sugar Division and Distillery division under reference. 6.In the order dated 5th December, 2001, the learned Tribunal had noted that in case of M/s. Jenson and Nicholson (India) Ltd. (supra) the factories were situated at different and distant places one at Panvel (near Bombay) and other at Calcutta. The company in that case had claimed S.S.I. exemption benefits by showing the clearances of the two factories separately and the department proposed to club the clearances and deny exemption benefits. That dispute ultimately arose before the High Court. The Court held that the exemption benefit had to be computed on the consolidated clearances of both the factories belonging to the same manufacturer. While dealing with the issue, the High Court referred to Rule 175 and observed, inter alia, if the same person wanted licences for carrying on business in more than one capacity, he had to submit separate applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actories situate at far flung places. In the instant case, the two Divisions of the same manufacture are situate in the same premises, separated only by a road. There is no comparison between the two cases. The High Court's decision is not applicable to this case. The Trade Notice, which has been ignored by the lower authority, clearly lays down that two Sections or Departments of the same manufacturer. In the same premises separated only by a road, are entitled to single Central Excise registration. The term 'Division' is only synonymous with either of the terms section and 'department'. Therefore, the provisions of the Trade Notice are clearly applicable to the appellants' case and their application for single registration ought to have been allowed." 8.The respondents had raised the preliminary objection of alternative remedy for filing reference under Section 35H of the Central Excise Act as such according to the respondents, the present writ petition is not maintainable. 9.The following submissions have been made on behalf of respondents: (a) During the pendency of the present writ petition, the petitioner has, also filed a Central Excise Reference Application No. 13 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days." 10.Learned Standing Counsel for the petitioners has submitted that plea of alternative remedy could not be persuaded for the following reasons : (i) The High Court cannot quash the order of the Tribunal. (ii) The High Court cannot grant stay order. (iii) The High Court cannot go into the factual aspects of the matter. (iv) The merits and demerits of the case cannot be gone into in reference under Section 35H. (v) The reference is not an alternative remedy. 11(A).The High Court cannot quash the order of the Tribunal.In this respect as submitted by the respondent that in a reference under Section 35H, the High Court cannot quash the order of the Tribunal is wholly misconceived. Section 35H(4) provides that the High Court will direct the Appellate Tribunal to refer the question(s) of law which shall be heard by a Bench by not less than two Judges under Section 35J. Sections 35H(4) and 35J(1) are reproduced below : "35H. (4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been availed by the petitioners by filing a reference under Section 35H(1) of the Central Excise Act], the writ petition of the petitioners is no longer maintainable. 11(B).High Court cannot grant stay order in a reference : but the stay order can be granted only in a writ petition under Article 226 of the Constitution of India. It was argued on behalf of the respondent that even though a Constitution Bench of the Supreme Court of India in the case of State of Orissa v. Madan Gopal Rungta, reported in A.I.R. 1952 SC 12 has held that no writ petition is maintainable only for the purpose of stay order when the "writ petition which was entertained by the High Court under Article 226 for the purpose of interim relief, as the suit could not have been filed in view of Section 80, C.P.C., and unavoidable delay might result in irreparable loss to the petitioner, was found to be not justifiable by the Supreme Court. Even though the High Court had granted a stay order in a writ petition, since no stay order could have been obtained immediately in a suit unless the statutory period under Section 80, C.P.C. expired, but the Constitution Bench of the Court has held, at page 14, as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of the reference proceedings in the High Court, and the writ petition under Article 226 is not an appropriate forum or remedy. High Court cannot go into the factual aspects of11(C). the matter.-According to the respondents this contention of the petitioners is also not tenable, as even in a writ petition under Article 226 of the Constitution, the High Court cannot go into the questions of facts and the findings of fact recorded by the Tribunal. In the case of P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar, reported in 2001 (2) S.C.C. 54 at page 57, paragraph 9, the Supreme Court has held as follows : "It is not for the High Court to go into the factual aspect of the matter and there is an existing limitation to that effect….. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate through, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the factual aspects of the matter, has observed as follows : "The question whether the loss suffered by the assessee was a trading loss or capital loss cannot, therefore, be answered unless it is first determined whether these two amounts were held by the assessee on capital account or on revenue account or, to put it differently, as part of fixed capital or of circulating capital. We would have ordinarily, in these circumstances, called for a supplementary statement of case from the Tribunal giving its finding on this question, but both the parties agreed before us that their attention was not directed to this aspect of the matter when the case was heard before the Revenue Authorities and the Tribunal and hence, it would be desirable that the matter should go back to the Tribunal with a direction to the Tribunal either to take additional evidence itself or to direct the Income Tax Officer to take additional evidence and make a report to it, on the question whether the sums of Rs. 25 lakhs and Rs. 12,50,000 were held in West Pakistan as capital asset or as trading asset or, in other words, as part of fixed capital or part of circulating capital in the business. The Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal under sub-Section (3) of Section 23 of the Act and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act……………Act provides for a complete measure to challenge an order of assessment ……………by mode prescribed by the Act and not by a petition under Article 226 of the Constitution". 14.The said decision has been followed in Assistant Collector of Central Excise v. Dunlop India Limited and others, 1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330 at page 332, para 3 as follows : "In Titagarh Paper Mills Co. Ltd. v. State of Orissa, A.I.R. 1983 S.C. 603, A.P. Sen, E.S. Venkataramaiah and R.B. Misra, JJ., held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were ……….become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in A.I.R. 1977 S.C. 898, para 4 in which the Supreme Court has held as follows : "..............the appellant has filed a writ, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion the appellant cannot pursue two parallel remedies in respect of the same matter at the same time." 17.In the case of C.L. Jain Woollen Mills, 1996 (84) E.L.T. 17, the Supreme Court has observed as follows : "While we agree with Mr. A. Subba Rao, the learned Counsel for the petitioner, that when the appeal before the Tribunal, preferred by the assessee himself, was pending, the High Court ought not to have interfered in the matter by way of a writ petition, in the facts and circumstances of the case, we are not inclined to interfere in the matter." 18.A Division Bench of the Andhra Pradesh High Court in the case of P. Vasu Babu v. Central Excise and Gold (Control) Appellate Tribunal, reported in 2002 (142) E.L.T. 316, has dismissed the writ petition under Article 226 of the Constitution only on the question that the petitioner has remedy of reference under Sections 35G and 35H of the Act. 19.A Constitution Bench of the Supreme Court in G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained unless the statutory remedies are exhausted. 25.In Whirlpool Corporation v. Registrar of Trade Marks, A.I.R. 1999 SC 22 and Tin Plate Co. of India Ltd. v. State of Bihar, AIR 1999 SC 74, the Supreme Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum. 26.In Sheela Devi v. Jaspal Singh, 1999 (1) S.C.C. 209, the Hon'ble Supreme Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked. 27.In Punjab National Bank v. O.C. Krishnan and Others, AIR 2001 SCW 2993, the Supreme Court while considering the issue of alternative remedy observed as under : "The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions, there is hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast tract procedure cannot be allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the matter of granting writs and where such remedy is exhausted, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds therefor. 30.Yet another Constitution Bench of the Supreme Court, in State of U. P. and Others v. Mohammed Noor, A.I.R. 1958 S.C. 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would like provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available through it may not be, per se, a bar to issue a writ of prerogative. The Supreme Court held that the remedy, being discretionary, cannot be asked as a matter of right, even if the order is a nullity, on the ground that it was passed by disregarding the rules of natural justice. The Court held as under : "........save in exceptional cases, the Courts will not interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy. 36.In A. Venkateshwaiah Naidu v. S. Chellappan and Others, 2000 (7) S.C.C. 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under : "though no hurdle can be put against the exercise of constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a constitutional remedy." 37.Similar view has been reiterated in U.P.S.R.T.C. and Another v. Krishna Kant and Others, 1995 (5) S.C.C. 75; L.L. Sudhakar Reddy and Others v. State of Andhra Pradesh and Others, 2001 (6) S.C.C. 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others, 2001 (8) S.C.C 509; G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer and Others, 2003 U.P.T.C. 200 (S.C.) = 2003 (1) S.C.C. 72 and Pratap Singh and Another v. State of Haryana, 2002 (7) S.C.C. 481. 38.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction or the virus of an Act is challenged. While deciding the said case, the Supreme Court placed reliance upon its earlier judgment in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, A.I.R. 1999 S.C. 22. 42.This Court in 2002 (1) U.P.L.B.E.C. 705, Hon'ble S.K. Sen, C.J. and Hon'ble R.K. Agrawal, J., Pradeep Kumar Singh v. U.P. State Sugar Corporation and Another, has referred in its judgment, the following cases, (1991) 2 U.P.L.B.E.C. 898, Chandrama Singh v. Managing Director, U.P. Co-operative Union; A.I.R. 1971 S.C. 33, Hirday Narain v. Income Tax Officer, Bareilly; 1995 All L.J. 454, Dr. Bal Krishna Agrawal v. State of U.P. and Others; (1990) 1 U.P.L.B.E.C. 699, Ambika Singh v. State Sugar Corporation, Ltd. and Others; (1998) 8 S.C.C., Whirlpool Corporation v. Registrar of Trade 'Mark, Mumbai and others; 2000 (1) E.S.C. 504 (All.), Satya Ram Yadav v. Deputy Managing Director, U.P. State Ware Housing Corporation, Lucknow; 2001 (2) E.S.C. 619 (All.), State of U.P. and Others v. Ali Abbas Abdi; A.I.R. 1987 S.C. 2186, Dr. (Smt.) Kamta Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur, U.P. and Others; 2000 (89) F.L.R. 1112, Sunil Kumar Pathak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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