Allahabad High Court
Dhampur Sugar Mills Ltd. vs Customs, Excise And Gold (Control) ... on 4 January, 1991
Equivalent citations: 1991(37)ECR600(ALLAHABAD)
JUDGMENT R.R. Misra, J.
1. The relief prayed for in the present writ petition is for quashing the order dated 16.1.1986 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Excise Tribunal).
2. The petitioner is a company engaged in manufacture of sugar. Molasses is produced as a by-product in the manufacture of sugar. Said molasses is also an excisable item under the Central Excises & Salt Act, 1944 (hereinafter called as Excise Act). Molasses so produced by the petitioner were stored in two different separate storage tanks. The assessee alleged that loss of molasses occurred due to overflow and leakage in the tanks during the season 1981-82 and 1982-83. No report in regard to the said loss of molasses was sent to the proper Officer of the Central Excise Department but the same was curiously enough mentioned in the monthly returns much after the alleged dates of happening. Since excise duty was lost in regard to the said molasses, three different show cause notices were issued to the petitioner by the Superintendent of Central Excise Department vide letters dated 9.5.1983, 16.5.1983 and 19.7.1983, whereunder the petitioner was required to show cause as to why excise duty specified in the said notices should not be demanded from the petitioner under Section 11-A of the Excise Act.
3. The petitioner contested all these show cause notices and availed personal hearing also. Consequently, after hearing the petitioner the Assistant Collector of the Central Excise, Moradabad, passed two orders. He did not agree with the contentions of the petitioner and called upon the petitioner to pay excise duty on the molasses so lost. Feeling aggrieved with the aforesaid orders, the petitioner preferred appeals before the Collector (Appeals), Central Excise, who allowed the appeals vide his order dated 28.6.1984.
4. I have heard Sri Ashok Khare, earned Counsel for the petitioner. Sri V.K. Singh, learned Chief Standing Counsel appearing for the Excise Department appeared and stated that he did not have the file of the case with him and is thus unable to assist the Court. On a question put by the Court as to why the petitioner has not filed a reference application under Section 35-G of the Excise Act for statement of the case to the High Court against the impugned order of the Excise Tribunal, earned Counsel for the petitioner has fairly submitted that after the filing of the writ petition, a reference application as contemplated by Section 35-G of the Excise Act was, in fact, filed before the Excise Tribunal but the same was rejected. Thereafter the assessee is said to have not pursued the matter further. Earned Counsel for the petitioner-assessee however submits that his petition is not liable to be thrown out on the ground of alternate remedy and in support of his submission he relied upon a decision of Hon'ble Supreme Court in the case of L. Hirday Narain v. Income Tax Officer, Bareilly (1971 A.I.R. S.C. 33). In that case a writ petition was filed against an order of rectification passed by the Income Tax Officer under Section 35 of the Income Tax Act, 1922. Admittedly, the said order was revisable by the Income Tax Officer. The petitioner in that case had directly filed a writ petition against the rectification order passed by the Income Tax Officer. If we closely examine the facts of that case we find that the said case is distinguishable in as much as in that case admittedly no revision was filed against the order of the rectification passed by the Income Tax Officer and also that on that date on which the petition was moved the period prescribed for filing a revision had expired, so the assessee was left with no remedy except the writ petition itself. In the present case, however, the position is entirely just the opposite because on the date this petition was filed in this Court there was not only limitation to file a reference application against the impugned order passed by the Excise Tribunal but during the pendency of the writ petition the assessee did file a reference application, which was also pursued by the assessee and a final decision obtained by the petitioner from the Excise Tribunal on the said application. In this view of the matter the ratio of the decision of the Hon'ble Supreme Court in the case of L. Hirday Narain {supra) that the writ petition should not be thrown out on the ground of alternate remedy, in my opinion, is of no help to the petitioner. Reference in this case can be usefully made to a decision of the Division Bench of this Court which held that in the situation like the present one there should be no interference in writ jurisdiction. In the case of Padampat Singhania and Ors. v. Assistant Controller of Estate Duty cum Income-tax Officer and Anr. (102 Income Tax Reports 701) there were two persons to whom notices were issued as accountable persons and these two persons filed a writ petition raising two grounds: (1) that the notices were barred by limitation; and (2) that one of the persons to whom notices were given was an accountable person. They had also preferred appeals on identical grounds. It was held in the said case that both the points could conveniently be dealt with by the appellate authority and this was not a fit case fa-interference in writ jurisdiction. In arriving at its conclusion the learned Judges of this Court in the said Division Bench had also placed reliance on a decision of the Hon'ble Supreme Court in the case of Lalji Haridas v. R.H. Bhatt (1955) 55 Income Tax Reports S.C. 415, whereunder it was held that the jurisdiction conferred on the High Court under Article 226 of the Constitution is not intended to supersede the jurisdiction or authority of the Income Tax Officers to deal with the merits of all the contentions that the assessee may raise before them and so it would be entirely inappropriate to permit an assessee to move the High Court under Article 226 and contend that a notice issued against him is barred by time. Further also in the case of Titaghur Paper Mills Co. Ltd. and Anr. v. State of Orissa and Anr. (1983 A.I.R. S.C. 603), which was a case arising under the Orissa Sales Tax Act, their Lordships of the Supreme Court after stating that against the assessment made by the Sales Tax Officer the petitioners can get adequate reliefs in appeals before the two appellate authorities and thereafter they can ask for a case to be stated upon a question of law for the opinion of the High Court, the Hon'ble Supreme Court has laid down that Taxation Act provides for a complete machinery to challenge an order of assessment and the same can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution (emphasis supplied). Next in the case of Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. (1965 A.I.R. S.C. 1321) the Hon'ble Supreme Court has also observed that though the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. Emphasis has been laid in the said case that the High Court has got jurisdiction to grant relief to such a party only if it thinks proper to do so in the circumstances of the case (emphasis supplied). Again in the case of A.V. Venkateswaran Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. (1961 A.I.R. S.C. 1506 : ECR C Cus 142 SC) the Hon'ble Supreme Court has taken the same view. In the said case the petitioner had disabled himself from availing of the statutory remedy by his own fault in not doing so within the prescribed time. The Hon'ble Supreme Court held that such a petitioner cannot certainly be permitted to urge that as a ground for the Court dealing with a petition under Article 226 of the Constitution of India to exercise its discretion in his favour.
5. I have given my anxious consideration to the said submission made by the earned Counsel for the petitioner that the petition should not be dismissed on the ground of alternate remedy. However, because of the special facts and circumstances of this case and the conduct of the petitioner in the present case I am not inclined to agree to the said submission made by the earned Counsel for the petitioner. The facts of the present case will reveal that the conduct of the petitioner was such as to disentitle him to invoke the writ jurisdiction of this Court. Coming to the facts of the present case, admittedly, against the impugned order a reference application under Section 35-G of the Excise Act was filed and it was an alternate remedy, against the impugned order of the Excise Tribunal and after pursuing the same the assessee-petitioner had lost in the same and thereafter he did not choose to go further. The main submission of the earned Counsel for the petitioner is that on the facts of this case no appeal lay to the Excise Tribunal by the Department and that being so the Excise Tribunal did not have any jurisdiction to entertain the appeal. Admittedly, no such objection was taken by the petitioner before the Excise Tribunal. Despite the fact that such an objection was open to be raised by the petitioner before the Excise Tribunal, the petitioner allowed the Excise Tribunal to go into the merits of the matter and took a chance in the decision of the case on merits. In view of this conduct of the petitioner I am not inclined to entertain this writ petition of the petitioner under Article 226 of the Constitution of India. Although the Court is conscious of the fact that a question of jurisdiction can be raised at any stage but the conduct of the petitioner has been such which itself, in my opinion, disentitles the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution.
6. There is yet another ground as to why I am not inclined to entertain the present writ petition. On the facts stated above, it is abundantly clear that the petitioner has, after the filing of the writ petition pursued the alternate remedy by filing a reference application against the impugned order of the Excise Tribunal and again even after the filing of the said reference application he did pursue the same before the Excise Tribunal knowing fully well the pendency of the present writ petition and got an adverse order against him. Ultimately the said adverse order passed by the Excise Tribunal rejecting the reference application has also been accepted by the petitioner.
7. Further, this Court has not been furnished with any copy of the said reference application, nor with a copy of the said order rejecting the reference application to ascertain as to what were the questions of law, if any, raised therein. Since the Excise Tribunal has rejected the reference application, it means that according to the Excise Tribunal, no question of law arises out of the impugned order of the Excise Tribunal. Thus the petitioner sought to avail two alternate remedies at the same time, one of filing the present writ petition and the other of pursuing the reference application before the Excise Tribunal during the pendency of the writ petition and that he, failing in reference application, did not go further but again seeks to press the present writ petition. Because of this conduct of the petitioner also I am not inclined to entertain the present writ petition.
8. Thirdly, whether loss of molasses in question was justified as natural loss or not is a disputed question of fact on which two appellate authorities have taken contrary views and, therefore, it will not be possible for this Court to adjudicate upon the same. Thus the petitioner has not succeeded in making out a case for the exercise of discretion in writ jurisdiction by this Court.
For the foregoing discussions, the writ petition fails and is dismissed with costs which are assessed at Rs. 200/-. The interim order granted in this case is hereby discharged.