Tripura High Court
M/S Asha Enterprise vs Commissioner Of Central Excise & S. Tax on 29 November, 2018
Bench: Sanjay Karol, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
W.P. (C) No.1059/2018
M/S Asha Enterprise,
Registered office at A.K. Road,
Near Check post,
P.S. - West Agartala,
Pin - 799001.
District - West Tripura,
(Represented by its proprietor Smt. Asha Dey)
........... Petitioner.
- Vs. -
Commissioner of Central Excise & S. Tax, Shilong,
110 Mahatma Gandhi Road, NER,
Shilong - 793001, Meghalaya.
........... Respondent.
For Petitioner(s) : Mr. Pulak Saha, Advocate. For Respondent(s) : Mr. Paramartha Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL HON'BLE MR. JUSTICE ARINDAM LODH Order 29/11/2018 The petitioner has prayed for the following reliefs:
"In the premises aforesaid, it is most humble prayed that your lordship would be graciously pleased to Issue Rule NISI calling upon the respondents to show cause as to why:-
i) A writ of certiorari should not be issued for quashing/cancelling and/or setting aside partly the common order of the CESTA Appellate Tribunal East Regional Bench, Kolkata dated 01-02-2018 passed in appeal Nos. Cus 75043-75046/2015 and Cus 75162-
75163/2015 arising out of Order-in-Appeal Nos. 36- 39/CUS(A)/GHY/14 dated 25.09.2014 & order in Appeal Nos. 48-49/CUS/GHY/14 dated 30.10.2014, passed by the customs, Excise & service tax appellate tribunal, East Regional Bench; Kolkata, setting aside the Page 2 of 4 impugned orders passed on 25-09-2014 in appeals nos 36-39/Cus(A)GHY/14 & dated 30-10-2014 in appeal Nos 48-49/CUS/GHY/14 by the Commissioners (Appeals) of customs central Excise and S Tax, Guwahati, And order dated 31-08-2018 passed in Original No. COM/CUS/ADDL. COMMR/148/2018 by the Commissioner of Customs (Preventive) (Adjudicating Authority).
AND/OR
ii) any other writ or direction should not be issued to grant complete and adequate relief to the petitioner and after hearing the parties your Lordship may be pleased to make the rule absolute.
AND/OR
iii) In the meantime your lordship may be pleased to stay operation of the order dated 30-08-2018 passed in Original No. COM/CUS/ADDL.COMMR/148/2018 by the Commissioner of Customs (Preventive)."
2. Learned counsel contends that the order passed by the assessing officer is contradictory to the observations made by the Tribunal, in terms whereof the matter came to be remanded back for consideration afresh.
3. We notice that the order against the assessee was firstly passed by the assessing officer on 3rd of July, 2012 whereafter the matter was taken in an appeal and then before the Tribunal, which authority, vide order dated 21st of December, 2017 set aside the earlier order(s) passed by the authorities and remanded the matter back to the assessing officer for consideration afresh.
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4. We notice that pursuant thereto, the assessee has participated in the adjudicatory process and raised all contentions so available in accordance with law. Now vide order dated 31st of August, 2018, the adjudicating authority i.e. the Additional Commissioner, Office of the Commissioner of Customs (Preventive) has passed a fresh order.
5. We notice that the writ petitioner has an equally efficacious alternative remedy available in accordance with law, under the provisions of the Customs Act, 1962 (Section 128) and as such, are of the considered view that all questions of fact and law can be raised by the writ petitioner, by resorting to the same. Disputed questions are left best to be adjudicated by the final Fact Finding Authority.
6. Learned counsel invites our attention to the decision rendered by the Apex Court in Ram and Shyam Company vs. State of Haryana and others; (1985) 3 SCC 267. We are conscious of the ratio of law laid down therein. There is no absolute bar in this Court entertaining the writ petition.
7. However, in the instant facts, since the writ petitioner had already taken recourse to such remedies, we are of the considered view that issues of fact are left best to be adjudicated by the final fact finding adjudicating authority and as such, dispose of the present petition leaving it open to the writ petitioner to take recourse to such remedies in accordance with law. Page 4 of 4
8. Period for which the writ petitioner had been pressing the remedies before this court shall be discounted for the purpose of limitation.
(ARINDAM LODH), J (SANJAY KAROL), CJ sima