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(6) Mr. Madan Lokur, appearing for the respondents raised a preliminary objection regarding the maintainability of the writ petition. According to the learned counsel for the respondents the Act being of a special nature the remedies provided for in the Act itself for-any breach or violation thereof were the remedies which were to be pursued by the aggrieved party if his or her right is infringed and that no writ for such violation is maintainable. The learned counsel further submitted that the petitioners herein have filed the present writ petition not only against the order of stay but also challenging the order passed by the Collector, Central Excise, whereas they have.also filed a Statutory appeal against the order passed by the Collector before the Tribunal, which is a statutory alternative remedy provided for under the Act. Accordingly, he submitted that the petitioners cannot be allowed to continue two parallel proceedings and under such circumstances this writ petition should be dismissed.

(12) It is pertinent to point out at this stage that in the present case the petitioners have already approached the Tribunal as against the original order passed by the Collector imposing basic and special excise duty and personal penalty on the petitioners, invoking the statutory alternative remedy and their appeal as of today is pending before the Tribunal, for decision. Accordingly, the petitioners have themselves taken advantage of the alternative legal remedy, and are actively pursuing it. In view of the aforesaid position, the question that arises for our consideration is as to whether the petitioners could be permitted to carry on two parallel proceedings at the same time and in that view of the matter whether the present writ petition should be entertained. Similar issue like the issue involved in the present case came to be decided by the Supreme Court in the case of K.S.Rashid& Son Vs. Income Tax Investigation Commission; reported as . In that case the Supreme Court has observed thus:- "WE think that it is not necessary for us to express any final opinion in this case as to whether Section 8(5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. For purposes of this case it is enough to state that the remedy provided for under Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party has an adequate or suitable remedy elsewhere. So far the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the remedy provided for in Section 8(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow the appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage, and on this-ground alone, we would refuse to interfere with the orders made by the High Court."

(14) The present petition is also a case where it is not merely the position that an alternative remedy exists but it is also a case where the petitioners have themselves taken resort to such alternative efficacious remedy which as of today is also pending disposal before the Appellate Authority. Inspite of the pendency of the aforesaid appeal the petitioners have moved this court under the extraordinary jurisdiction of this court under Article 226 as against the final order passed by the Collector of Excise, which is also the subject matter of the appeal. Accordingly, for the same cause of action two parallel proceedings - one by way of an appeal under the statutory law and the other by way of present writ petition under extraordinary jurisdiction of this court under Article 226 of the Constitution of India are pending. It may also be mentioned that as against the appeal.preferred by the petitioners before the Appellate Authority, they have statutory remedies provided for up to a reference to this court on questions of law. In the aforesaid view of the matter, .in our opinion a clear distinction is to be made between cases where one is considering the mere existence of an alternative remedy and cases where there exists an alternative remedy in law and that remedy is being actively pursued by the aggrieved party giving rise to parallel proceedings. In the present case the petitioners come particularly under the second category having taken recourse simultaneously to two parallel proceedings - one having filed an appeal statutorily provided for and the other, the present writ petition. In our opinion the ratio laid down by the Supreme Court in the case of K-S.Rashid & Son case (supra) and Bombay Metropolitan Region case (supra) are fully applicable to the facts and circumstances of this case. Accordingly, in our opinion the present writ petition is not liable to be entertained.