Delhi High Court
Perfect Electric Concern Pvt. Ltd. vs Assistant Collector/Commissioner, ... on 27 August, 1998
Equivalent citations: 75(1998)DLT405, 2000(118)ELT578(DEL)
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. This petition under Articles 226/227 of the Constitution has been filed against an order passed by CEGAT confirming an order-in-original passed by the Collector of Central Excise, Patna. It is not disputed that the subject matter of the two impugned orders relates to determination of any question having relation to the rate of duty of excise or of the value of the goods for the purpose of assessment, the expression as used in Clause (b) of Section 35L of the Central Excises and Salt Act,1944. Statutory remedy of appeal to Supreme Court has been provided against such an order. Without pursuing the remedy of appeal this petition under Article 226/227 of the Constitution has been filed before this Court.
2. The maintainability of the petition before the High Court has been objected to on behalf of the respondents submitting that the High Court would not entertain a writ petition brought before it by-passing the statutory remedy of appeal to Supreme Court. The learned Counsel for the petitioner has submitted that the petition does lie before this Court. He placed reliance on the Supreme Court judgment in L. Chander Kumar v. UOI, thereof.
3. We have carefully perused the judgment of the Supreme Court. A reading of paras91 and 92 makes it clear that what their Lordships have held is not to permit SLPs under Article 136 of the Constitution being filed before the Supreme Court against the orders of the Tribunals constituted under Articles 323A and 323B of the Constitution. Their Lordships have nowhere said that the petitioner should file petitions under Articles 226/227 of the Constitution even by-passing the statutory remedy of an appeal to the Supreme Court provided by an enactment.
4. A similar argument as has been advanced on behalf of the petitioner before us, was advanced earlier also before another Division Bench of this Court and turned down in Shalimar Rubber Industries v. UOI, (CWP 1885/97 decided by order dated 6.5.97.) The Division Bench has held:
"In view of these alternative remedies we do not think that it is a fit case where we should exercise our jurisdiction under Article 226 of the Constitution. Mr. Chandrasekharan, learned Counsel for the petitioner relies upon a recent decision of the Supreme Court in the case of L. Chandra Kumar v. UOI(supra) and in particular paragraphs 91 and 92 of the said decision in support of the contention that now appeal under Section 35L does not lie and only a writ petition under Act 226 of the Constitution can be filed. We do not agree. In our opinion there is substance in the submission of Mr Misra, learned Counsel appearing for the Government that the ratio of Chandra Kumar's decision is not to take away right of appeal provided under Section 35L of the Act. In this view decline to entertain the writ petition and the same is dismissed."
5. A Full Bench decision by the High Court of Bombay in Colour Chem Ltd. v. UOI, 1989 (98) ELT 303, has also been brought to our notice. The Full Bench has held :
"The admitted position in this case is that an appeal is provided against the impugned order of the Tribunal to the Supreme Court under Section 35L of the Act. Since the Legislature has provided appeal against certain orders only to Supreme Court, in our opinion, it is not open to the aggrieved person to bypass the remedy provided by the Legislature by way of appeal to the Supreme Court and come to the High Court and try to challenge the same before the High Court in its writ jurisdiction. We are of the clear opinion that in such a situation, the High Court should not entertain the writ petition challenging the order against which appeal is provided only to Supreme Court because it would amount to usurping the powers of the Supreme Court in the guise of exercise of writ jurisdiction. In view of the above, we do not find any reason to entertain this writ petition of the petitioners."
6. We are bound by the view already taken by a Division Bench of this Court. We also find ourselves in respectful agreement with the view taken by the Full Bench of Bombay High Court.
7. As the statutory remedy of filing an appeal under Section 35-L of Central Excises Act is available to the petitioner, this petition under Articles 226/227 of the Constitution is dismissed in limine.