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2017 (3) TMI 1931 - HC - Central ExciseMaintainability of petition - efficacious alternative remedy available to the petitioner - Denial for permission to clear the goods on provisional assessment basis under Rule 7 of the Central Excise Rules, 2002 - HELD THAT:- It is true that for maintainability of a writ petition alternative remedy is not a bar but when to invoke the extra ordinary jurisdiction under Article 226 of the Constitution will depend on the facts of each case. The fundamental principles which have been pronounced by the Hon’ble Supreme Court from time to time and taking into consideration the facts and circumstances of this particular case, it is not required to invoke the discretion more particularly when the order impugned is a well reasoned order dealing with the entire aspects argued before it by the petitioner company. The rule of exhausting the statutory remedy is a self-imposed limitation, a rule of policy and the discretion rather than a rule of law. A writ court in exceptional cases can issue a writ notwithstanding the fact that the statutory remedy has not been exhausted. However, the rule of policy relating to availability of alternative remedy can be ignored in the exceptional case only. The exceptional circumstances differ from case to case and facts to facts. In general, it can be said that if there is a complete lack of jurisdiction in the officer or the authority to pass the impugned order, if the order impugned is passed in flagrance violation of principal of natural justice, if the order under challenge is absolutely non-speaking and unreasoned and not effective challenge to that can be given by availing remedy of appeal, the violation of fundamental rights is apparent and availing of alternative remedy, statutory remedy shall be nothing but an empty formality. Since none of the conditions exist in the present case and there is an equally efficacious alternative and statutory remedy of appeal under Section 35 of the Central Excise Act available to the petitioner, the jurisdiction under Article 226 of the Constitution of India not exercised in this case - petition dismissed.
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