Rajasthan High Court - Jodhpur
Shree Raj Pan Masala Pvt. Ltd., & Anr vs Union Of India & Anr on 19 May, 2017
Author: Govind Mathur
Bench: Govind Mathur, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 11566 / 2016
1. Shree Raj Pan Masala Private Limited, Jodhpur-Jaipur Highway,
Village Banar, Jodhpur.
2. Manoj Kumar S/o Shri Heera Lal, aged 37 years, Director of
M/s. Shree Raj Pan Masala, Resident of Sutharon Ka Bas, Bilara,
District Jodhpur.
----Petitioners
Versus
1. Union of India, through the Chief Commissioner of Central
Excise, Jodhpur Zone, Jodhpur.
2. Commissioner of Central Excise, Jodhpur, New Central Revenue
Building, Statute Circle, C-Scheme, Jaipur.
----Respondents
D.B. Civil Writ Petition No. 11568 / 2016
1. Shree Raj Exports Private Limited, Registered Office at 2,
Suvart Apartment, Tembhi Naka, Thane (W) - 400 601.
2. Vinod Kumar S/o Shri Gumani Lal Ji Sharma, aged 29 years,
Authorized Signatory of Shree Raj Exports Pvt. Ltd., Resident of
Village & Post Salori, Via Soor Sagar, Jodhpur.
----Petitioners
Versus
1. Union of India, through the Chief Commissioner of Central
Excise, Jodhpur Zone, Jodhpur.
2. Commissioner of Central Excise, Jodhpur, New Central Revenue
Building, Statute Circle, C-Scheme, Jaipur.
----Respondents
(2 of 5)
[CW-11566/2016]
_____________________________________________________
For Petitioner(s) : Mr. Sudhir Gupta
Mr. Umang Gupta
Ms. Shweta Chouhan
For Respondent(s) : Mr. Vipul Singhvi
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Order Per Hon'ble Govind Mathur, J.
19/05/2017 These petitions for writ are before us to examine correctness of the order dated 25.5.2016 (Anx.5), passed by the Commissioner of Central Excise, Jodhpur, demanding the duty proposed as per the notice to show cause dated 7.11.2012 and also imposing penalty as per provisions of Section 11-AC of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944'). By the same order an order is also given to pay interest as per Section 11-AB of the Act of 1944.
At threshold, learned counsel appearing on behalf of the respondents submits that these petitions for writ deserve to be dismissed being preferred without first exhausting the efficacious alternative remedy available under Section 35-B of the Act of 1944. According to learned counsel, as per Section 35-B of the Act of 1944, any person aggrieved by a decision or order passed by (3 of 5) [CW-11566/2016] the Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority may appeal to the appellate tribunal against such order. The order impugned being passed by the Commissioner of Central Excise is appealable before the Central Excise and Service Tax Appellate Tribunal (CESTAT).
While meeting with the preliminary objection advanced, Shri Sudhir Gupta, learned counsel appearing on behalf of the petitioners, submits that the doctrine of exhausting all the remedies before approaching writ Court is not a rule of law but is a self-restraint that can be relaxed in several eventualities. If a petition for writ is preferred with well founded allegation of the violation of principles of natural justice while taking impugned action, the writ Court invoke its authority to vanish a wrong. In the instant matters the Commissioner, while passing the adjudicating order impugned, acted in flagrant violation of principles of natural justice by refusing to cross examine the witnesses and that resulted into an order absolutely arbitrary. The violation of principles of natural justice is so apparent that the same is not even required to be established by adducing evidence. As per learned counsel, the provisions contained in Section 9-D of the Act of 1944 in quite unambiguous terms provides that an opportunity of cross examination of the witness making statement is mandatory, but that was denied by the Commissioner. Such denial makes the order passed by the Commissioner bad, hence, this Court must exercise its discretion in favour of the petitioners. Learned counsel has also placed reliance upon few judgments of (4 of 5) [CW-11566/2016] different High Courts entertaining the writ petitions against such orders without relegating them to avail the remedy of appeal prescribed under the Act of 1944.
Heard learned counsels.
It is not at all in dispute that the order impugned is appealable as per Section 35-B of the Act of 1944 and the petitioners have not exhausted the remedy available. The writ Court is approached directly on the count that the order passed by the Commissioner is in violation of principles of natural justice. True it is, the doctrine of alternative remedy is not a rule of law but a policy and self-restraint and that can very well be waived in certain eventualities including the violation of principles of natural justice, however, it is not necessary that wherever and whenever such eventuality exists, the writ Court must entertain a petition for writ. A broad discretion is available to writ Court to entertain the writ petition in such circumstance. While exercising discretion, the Court is required to examine the nature of the remedy available and the Court is required to satisfy itself that whatever remedy available is not adequately efficacious as to the writ that is to be issued to erase the wrong committed. Under Section 35-B of the Act of 1944 the statutory remedy of appeal is before the Central Excise and Sales Tax Appellate Tribunal, a tribunal constituted by a statute. The statutory authority to have such tribunal is extended by Article 323-B of the Constitution of India. The tribunal is consists of judicial as well as administrative (5 of 5) [CW-11566/2016] members and the procedure applicable for adjudication of the appeals is undisputedly fair, effective and equipped to adjudicate the appeals expeditiously. The tribunal is also having authority to issue interim directions, if the facts and law demands for that. In such circumstance, we are having no hesitation in holding that an efficacious alternative remedy is available to the petitioners and no reason exists to entertain these petitions for writ without exhausting the same.
In view of it, we are not inclined to entertain these petitions for writ as the petitioners are having an effective alternative remedy. Accordingly, the petitions for writ are dismissed. The petitioners are at liberty to avail the remedy under Section 35-B of the Act of 1944 and if they prefer such appeals before the Central Excise and Sales Tax Appellate Tribunal by satisfying all pre-conditions within a period of 30 days from today, the tribunal shall adjudicate the same on merits.
No order to cost.
(MANOJ KUMAR GARG)J. (GOVIND MATHUR)J. MathuriaKK/PS