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2019 (6) TMI 949 - HC - Central ExciseMaintainability of writ petition - Refund of CENVAT credit - Rule 5 of 'Cenvat Credit Rules, 2004' - Statutory Appeal under Section 35-B of the CE Act - HELD THAT:- A careful perusal of Section 35-B of CE Act, reveals that the powers of the Tribunal have not been circumscribed in any manner qua testing no notification plea and there is nothing before this Court to demonstrate that the Tribunal i.e., CESTAT cannot go into the aforesaid aspect of the matter. Therefore, it is clear that an alternate remedy qua impugned order is available for the writ petitioner. With regard to the alternate remedy, it is no doubt, not an absolute Rule. In other words, alternate remedy is a rule of discretion and not a rule of compulsion. Though alternate remedy is a Rule of discretion, in a long line of authorities, the Hon'ble Supreme Court has repeatedly held that exercise of writ jurisdiction on the teeth of alternate remedy, will be when the matter falls under certain specified exceptions. In the instant case, after hearing both the aforesaid learned counsel, this Court is unable to persuade itself to believe that the petitioner is able to demonstrate that it's case falls under any of the aforesaid exceptions. In other words, the facts and circumstances of this case, cannot be brought within the contours and four corners of the exceptions, adumbration of which have been made - this Court is of the considered view that owing to the factual matrix this is an appropriate case to leave it open to the writ petitioner to avail the alternate remedy by filing a Statutory Appeal to CESTAT under Section 35-B of the CE Act. Petition disposed off.
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