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2013 (5) TMI 734 - HC - Central ExciseAttachment order - detention of goods - recovery of the disputed duty - As the petitioner has already elected to prefer an appeal to the CESTAT, would this Court be justified in examining the merits, of the order under appeal before the CESTAT, in proceedings under Article 226 of the Constitution of India? - held that:- The Doctrine of Election suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them. [A.P. State Financial Corpn. v. Gar Re-Rolling Mills - 1994 (2) TMI 268 - SUPREME COURT OF INDIA]. There are three elements to the Doctrine of election, namely, existence of two or more remedies; inconsistencies between such remedies, and a choice of one of them. [Transcore v. Union of India - 2006 (11) TMI 349 - SUPREME COURT OF INDIA]. As the petitioner has elected to file an appeal, which is pending before the CESTAT, the merits of the order-in-original passed by the Commissioner ought not to be examined by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. As suspension of the first part of the impugned order of attachment would merely be an exercise in futility, we refrain from doing so. We consider it appropriate, therefore, to direct the CESTAT to hear and dispose of the stay/waiver petition filed by the petitioner in accordance with law within a period of three weeks from today.
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