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2010 (8) TMI 723 - HC - Central ExciseMaintainability of writ petition - availability of alternative appellate remedy - Condonation of delay - held that:- The Supreme Court in RAJ KUMAR SHIVHARE Versus ASSTT. DIRECTOR, DIRECTORATE OF ENFORCEMENT (2010 -TMI - 77919 - SUPREME COURT) has in unequivocal terms held that only under exceptional circumstances as laid down in para 42 of the judgment of the supreme court i.e., when there is complete lack 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. 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 matters and if such course is adopted no serious prejudice is likely to be caused to the department/revenue, writ petition is filed within the period of limitation i.e., 180 days as specified u/s. 35G of Central Excise Act to prefer further appeal before the appellate Board, writ petition is directed to be returned for being converted into CMA u/s. 35G of the Central Excise Act and for being posted for disposal before the appropriate Bench.
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