TMI Blog2010 (8) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction not withstanding the availability of alternative remedy and in other cases High Court should refuse to entertain the writ petition. As the relevant provision of law in the case dealt with by the Supreme Court is para material the same in the present case the observation of the Supreme Court that no writ petition can be entertained, when there is alternative remedy is applicable to the present case in equal force. On this score alone the relief sought for in this writ petition has to necessarily fail. Conversion of writ petition into appeal - held that:- writ petition can be returned for being converted into CMA and the same may be after suitably converted so posted before the appropriate bench constituted for disposal of tax ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 and the assessee was as par Rule 8 of Central Excise Rules permitted to pay the duty on fortnightly basis. As there was some default on the part of the petitioner to pay duty, the petitioner is by order dated 31-1-2001 passed by the Deputy Commissioner of Central Excise, barred from availing the facility of payment of duty on fortnightly basis and he was directed to pay the duty in Account-Current. According to the petitioner, he is as per Central Excise rules permitted to utilise CENVAT credit for the payment of duty on clearance of the final product and as the petitioner was during the relevant point of time in acute financial problem the demand was complied with from and out of CENVAT credit account and not through personal ledger acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed orders which according to the petitioner is without giving notice to the petitioner company, thereby directing the petitioner company to pre-deposit 50% of the duty confirmed by the adjudicating authority within four weeks as pre-condition to waive pre-deposit and to stay recovery in respect of the penalty amount and the balance amount of duty and the applications stood adjourned to report compliance to 22-6-2006 and the same is followed by Final Order on 22-6-2006 in and under which the appeals are dismissed for non-compliance of the conditional order with regard to pre-deposit of 50% amount as required under Section 35F of the Central Excise Act. The final order so passed on 22-6-2006 in all the four appeals by the 1st respondent/fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led against the same will render the petitioner s right to avail the statutory remedy not meaningful and ineffective, and the conditional order in the absence of strong prima facie case in favor of the revenue and in spite of the payment of duty by the petitioner through CENVAT account cannot be allowed to stand. 6. Per contra, the learned standing counsel for the respondent Customs department would oppose the reliefs sought for in these writ petitions, both in law and on facts. The main legal objection raised on the side of the respondents is that the writ petitions are not maintainable without exhausting the statutory remedy provided u/s. 35G of the Central Excise Act to High Court. The respondents has also filed detailed counter as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remedy which are (1) 1998 (101) E.L.T. 9 (S.C.) in ITC Ltd. v. Union of India; (2) 2000 (120) E.L.T. 602 (Ker.) in Thressiamma v. Union of India; (3) 2001 (133) E.L.T. 515 (S.C.) in Collector of Central Excise, Meerut v. Modi Rubber Ltd.; (4) 2007 (215) E.L.T. 500 (Tri-LB) in Noble Drugs Ltd. v. Commissioner of C.Ex., Nasik; (5) 2008 (231) E.L.T. 410 (Mad.) = 2010 (18) S.T.R. 241 (Mad.) in National Oxygen Ltd. v. Commissioner of Customs, Chennai; (6) 2009 (236) E.L.T. 12 (Del.) = 2009 (13) S.T.R. 598 (Del.) - Union of India v. Classic Credit Ltd.; (7) 2009 (246) E.L.T. 9 (Mad) in Madura Coats Ltd. v. Collector of Central Excise, Madurai and (8) 2009 (242) E.L.T. 321 (Bom.) in Samruddhi Industries v. CESTAT, Mumbai. 9. Whereas the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction and violation of rules and principles of natural justices or when the tribunal acted under provision of law which is declared as ultra vires the High Court can exercise jurisdiction not withstanding the availability of alternative remedy and in other cases High Court should refuse to entertain the writ petition. As the relevant provision of law in the case dealt with by the Supreme Court is para material the same in the present case the observation of the Supreme Court that no writ petition can be entertained, when there is alternative remedy is applicable to the present case in equal force. On this score alone the relief sought for in this writ petition has to necessarily fail. 10. However, it is submitted on the side of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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