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2022 (5) TMI 477 - HC - Central ExciseViolation of principles of natural justice - case of the petitioner is that no opportunity of furnishing a written reply to the said audit para was provided - demand of excise duty with interest and penalties on Food Items manufactured by the petitioner - benefit of N/N. 12/2012-Central Excise dated 17.03.2012 - HELD THAT:- Admittedly in the instant case, the Order-in-Original has been passed and the thrust of argument of this petitioner is that principle of natural justice has not been complied in this case, and as such, the instant writ application is maintainable. However, after going through the Order-in-Original it clearly transpires that the Adjudicating Authority has held at page 47 of the order in O.I.O that opportunity of personal hearing was given to the petitioner on 17.11.2020 through virtual mode as well as physical mode, however, the noticee failed to appear. On 17.12.2020 again the petitioner was given an opportunity of personal hearing through virtual mode as well as physical mode. In response to personal hearing scheduled on 17.12.2020, the petitioner requested adjournment on the ground that the authorized person was suffering from COVID-19 and requested that personal hearing may be given on some other day - Finally, personal hearing in the case was held on 08.01.2021 when the noticee appeared and was represented by Sh. Mukesh Kasera, Manager (Finance) and Sh. Rahul Lakhwani, Authorized representatives. In view of the categorical finding in the Order-in-Original it clearly transpires that principle of natural justice has been duly followed. Jurisdiction - powers of High Court - HELD THAT:- After going through the judgment in M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT], it appears that the law on the issue of maintainability has been reiterated in this case and the Hon’ble Apex Court has categorically held that exceptions to rule of alternative remedy arise where the writ petition has been filed for the enforcement of fundamental right or there has been a violation of principle of natural justice or the order or proceeding are wholly without jurisdiction or the vires of legislation is challenged. In the case of M/S RADHA KRISHAN INDUSTRIES, the Hon’ble Apex Court has also held that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy - Coming to the facts of the case as stated, there appears to be no violation of principles of natural justice. Moreover, the petitioner has prayed for quashing of the Order-in-Original for which there is a statutory remedy prescribed by the statute. It is also not the case of the petitioner that the Order-in-Original is passed without jurisdiction. None of the exceptions as carved by the Hon’ble Apex Court for maintainability of the writ application, bypassing the alternative remedy, has been met out in the instant application. As such merits of this case is not considered and the instant writ application is dismissed on the ground of maintainability itself with a liberty to the petitioner to prefer an appeal under Section 35 B of Central Excise Act, 1944. Application dismissed.
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