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2018 (10) TMI 830 - BOMBAY HIGH COURTMaintainability of petition - invocation of extra ordinary jurisdiction to interfere with the impugned order - Principles of Natural Justice - grievance of the Petitioner to the common impugned order dated 31st March, 2017 is that it has been passed without giving an opportunity to the Petitioner to cross examine the person whose statement is being relied upon by the Revenue. Held that:- The jurisdiction of the Courts while exercising power under Article 226 of the Constitution is plenary. However, the Court has developed a self imposed rule that, in case, where there is an alternate efficacious remedy available, this Court would not normally exercise its discretion to entertain a Petition under Article 226 of the Constitution of India - Therefore, where the order is challenged is without jurisdiction (as opposed to an error within jurisdiction), or the process of decision making is such that it shocks the conscious of the Court and the interference on the above ground does not involve finding of fact and/or elaborate examination of evidence, then in the facts of the case, the Court may exercise its discretion to entertain the Petition. However, it needs to be emphasized that there can be no hard and fast rule in this matter. It is entirely for the Court to decide whether to exercise its discretion or not in the facts of the case before it. The impugned order dated 31st March, 2017 has considered and dealt with the issue of grant of cross examination to the Petitioner to come to the conclusion that in these facts, it need not be granted. Thus, if the Petitioner is aggrieved with regard to the manner in which the impugned order has refused to grant cross examination, that is an issue which could be appropriately agitated before the Appellate Authority i.e. the Tribunal. This for the reason that it would require factual determination of whether or not, in the facts and circumstance of the case, the cross examination as requested, ought to be given - in the present facts, the impugned order is not an order without jurisdiction, if at all, at the highest, it could be an error within jurisdiction. Therefore, a proper subject of appeal, before the Tribunal. There is no reason to exercise our extra ordinary jurisdiction to interfere with the impugned order dated 31st March, 2017 passed by the Commissioner of Central Excise. Petitioner does has an effective alternative efficacious remedy available under the Act - petition dismissed.
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