Gujarat High Court
Shaniyal Dyeing And Printing Mills ... vs Union Of India & 3 on 19 April, 2017
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/7660/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7660 of 2017
==========================================================
SHANIYAL DYEING AND PRINTING MILLS PRIVATE LTD. &
1....Petitioner(s)
Versus
UNION OF INDIA & 3....Respondent(s)
==========================================================
Appearance:
MR. S S IYER, ADVOCATE for the Petitioner(s) No. 1-2
MR DHAVAL SHAH, ADVOCATE for the Petitioner(s) No. 1-2
==========================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 19/04/2017
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. This petition is directed against the order Annexure-A to the petition, as being contrary to the provisions of sub-section (4) of section 3-A of the Central Excise Act.
2. Heard Mr. S. S. Iyer, learned advocate for the petitioner, who has placed reliance upon the decision of this court in the case of Alstom India Limited v. Union of India, 2014 (301) E.L.T. 446 (Guj.) and more particularly, to the contents of paragraph 12 thereof, which are extracted hereinbelow for ready reference:-
Page 1 of 4HC-NIC Page 1 of 4 Created On Wed Aug 16 02:25:52 IST 2017 C/SCA/7660/2017 ORDER "12. Moreover, we find substance in the contention of Mr. Ghosh, the learned counsel appearing for the petitioner, that in the earlier proceedings before the Division Bench, pursuant to the directions given by the Division Bench, there was neither any adjudication on the question involved in this writ-application nor was there any scope of giving direction upon the respondent No.2 to decide the question of vires of the provisions challenged in this writ-application. Therefore, the fact that in the past, the petitioner has filed another Special Civil Application on the question of merit of an order by assuming the provision to be valid, cannot stand in the way of the petitioner in maintaining the present writ-application because when a statutory authority acts in excess of its power or jurisdiction under the statute which created it, its action cannot be upheld on the principle of estoppel or acquiescence. At this stage we may profitably refer to the following observations of the Supreme Court in the case of RAMDAS SHENOY VS. CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL, UDIPI reported in AIR 1974 SC 2177 dealing with the case of excess of statutory power:
"An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson, (1883) 8 App Cas 467 said that courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable."
3. A perusal of the record of the case as presented before this court, reveals that the order impugned in the present petition is the order-in-original No.SRT-II/ADJ-19/Dem/2016-17 dated 28.12.2016. Earlier a writ petition challenging the Order- in-original No. SRT-II/ADJ-19/Dem/2016-17 dated 28.12.2017 Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Aug 16 02:25:52 IST 2017 C/SCA/7660/2017 ORDER passed by the third respondent therein, namely, the Assistant Commissioner of Central Excise, Division-III, Surat-II, being Special Civil Application No.5815 of 2017 came to be filed before this court by one Nilaben Jayantilal Mandviwala and M/s Koshal Monofilaments, stating that the petitioner No.1 was also a director of M/s Shaniyal Dyeing and Printing Mills Ltd. By an order dated 21.3.2017, the said petition came to be dismissed by this court, holding that the petition was not maintainable in view of the availability of an alternative efficacious remedy by way of an appeal under the provisions of the Central Excise Act, 1944.
4. The present petition has been filed by M/s Shaniyal Dyeing and Printing Mills Ltd. and Smt. Nimishaben S. Mandviwala, another director of the petitioner No.1 Company challenging the very same order which was subject matter of challenge in the above referred petition. Having regard to the fact that earlier, a petition on the same cause of action filed by other parties, one of whom was a director of the petitioner No.1 Company, has been dismissed by this court on the ground of maintainability as there is an efficacious alternative remedy of appeal available under the statute, this court would not entertain another petition challenging the very same order on different grounds.
5. Insofar as the reliance placed upon the decision of this court in the case of Alstom India Limited v. Union of India (supra) is concerned, the same was delivered in the facts of the said case, wherein in the subsequent petition, the constitutional validity of Para 2.3 of the Foreign Trade Policy and Para 8.3.6 of HOP had been challenged as being Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Aug 16 02:25:52 IST 2017 C/SCA/7660/2017 ORDER unconstitutional and ultra vires the Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade Policy, which relief could not have been granted by the statutory authorities. Whereas in the present petition, though different grounds for challenging the impugned order may have been raised, there is no challenge to the constitutional validity of any provision of law or notification etc. issued by the respondent authority. The petitioner has challenged the impugned order in original on various grounds, all of which can be urged before the appellate authority. In view of the fact that there is no apparent distinction in the nature of the relief claimed in the earlier petition and this petition, the question of entertaining this petition does not arise. The above referred decision of this court would, therefore, not be applicable to the facts of the present case.
6. In the light of the above discussion, without entering into the merits of the controversy, the petition is dismissed as not maintainable.
(HARSHA DEVANI, J.) (A. S. SUPEHIA, J.) zgs Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Aug 16 02:25:52 IST 2017