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TMI Blog2007 (1) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectly computing the duty liability or to direct the Hon'ble Tribunal to decide the appeal afresh considering all the contentions taken in the memo of appeal and urged during the course of hearing. (iii) any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iv) and to award the cost of the Writ petition to the petitioner. Brief facts of the case-giving rise to the present writ petition are that the petitioner is engaged in the manufacture of tents and parts thereof falling under Chapter 6306 of the Central Excise Tariff Act, 1985 and duly registered under the Central Excise Department. The Central Preventive Officers of the Central Excise Kanpur visited the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards duty but reduced the penalty amount to Rs. 2.5 lacs. Challenging the aforesaid order, the present writ petition has been filed. 2. Heard learned counsel for the parties. 3. Learned Standing Counsel submitted that against the impugned order of the Tribunal, petitioner had an alternative remedy by way of reference under Section 35H of the Excise Act and, therefore, the writ petition is not maintainable. He submitted that the relief, which the petitioner is seeking in the present petition, can also be availed in the reference, but instead of filing reference application, present writ petition has been filed, which is not maintainable and liable to be dismissed. 4. Learned counsel for the petitioner submitted that the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of U.P and others, reported in 2006 NTN (Vol. 31), 249, Apex Court has Considered in detail the issue relating to the entertainment of the writ petitions when alternative remedy is available Apex Court held as follows : "Except for a period when article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been re-iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors. (AIR 1959 SC 422); Municipal Council, Khurai and Anr v. Kamal Kumar and Anr. (AIR 1988 SC 1321); Siliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653); S.T. Muthusami v. K Natarajan and Ors. (AIR 1988 S.C. 616); R.S.R.T.C. and Anr. v. Krishna Kant and Ors. (AIR 1995 SC 1715); Kerala State Electricity Board and Anr v. Kurien E. Kalathil and Ors. (AIR 2000 SC 2573); A. Venkatasubbiah Naidu v. S. Chellappan and Ors. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 SC 22); Tin Plate Co. of India Ltd v. State of Bihar and Ors. (AIR 1999 SC 74); Sheela Devi v. Jaspal Singh [1999 (1) SCC 209] and Punjab National Bank v. O.C. Krishnan and Ors. [2001 (6) SCC 569], this Court held that there hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. 11. If, as was noted in Ram and Shyam Co. v. State of Haryana and Ors. (AIR 1985 SC 1147) the appeal is from "Caeser to Ceaser's wife" the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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