2017 (5) TMI 1284 - HC - Customs

Maintainability of appeal - efficacious alternative remedy of appeal - Held that - though different grounds for challenging the impugned order may have been raised there is no challenge to the constitutional validity of any provision of law or notification etc. issued by the respondent authority. The petitioner has challenged the impugned order in original on various grounds all of which can be urged before the appellate authority - petition is dismissed as not maintainable.

Summary

Issues:
Challenge to order under Central Excise Act

Analysis:
The petition challenged an order under the Central Excise Act, claiming it was contrary to the provisions of sub-section (4) of section 3-A. The petitioner relied on a previous court decision and argued that the statutory authority had acted beyond its power. The court referred to a Supreme Court case emphasizing that an excess of statutory power cannot be validated by acquiescence or estoppel. The order in question was Order-in-Original No. SRT-II/ADJ-19/Dem/2016-17 dated 28.12.2016. A previous writ petition on the same order was dismissed for not being maintainable due to the availability of an alternative remedy through an appeal under the Central Excise Act.

The current petition was filed by different parties challenging the same order. The court noted that since a previous petition on the same cause of action was dismissed for being not maintainable, another petition challenging the same order on different grounds would not be entertained. The court distinguished the present case from a previous decision where the constitutional validity of certain provisions was challenged, stating that in this case, no challenge to the constitutional validity of any provision was made. The petitioner had raised various grounds for challenging the order, all of which could be addressed in an appeal. As there was no apparent distinction in the relief sought compared to the earlier petition, the court found the current petition not maintainable and dismissed it without delving into the merits of the case.