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TMI Blog2010 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 19-9-2005 being Annexure P-11. (ii) Striking off Rule 20 of the C.E.S.T.A.T. (Procedure) Rules, 1982 in so far as it provides for dismissal of appeal for default of appearance. (iii) Directing Respondent Tribunal to restore the dismissed appeal of the petitioner to its original number. (iv) Quashing demand notice of department dated 9/10-11-2005 being Annexure P-12. (v) Any other relief that the Hon'ble High Court may deem fit." 2. The Dy. Commissioner of Central Excise ordered recovery of Modvat credit of Rs. 69,409/- and also imposed penalty of Rs. 10,000/- under Rule 173 of the Central Excise Rules, 1944. The appeal preferred by the petitioner against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vering letter (Annexure P/5) along with memo of appeal. In the covering letter, it is clearly mentioned that five copies of medical certificate have also been enclosed with the memo of appeal. Even otherwise, the check notes of Annexures P/6, P/7 & P/8, prepared by the Registry, do not mention any default that medical certificate is missing. From perusal of the original record of the Excise Tribunal also, it is evident that medical certificate is available with the record. In these circumstances, rejection of the petitioner's application for condonation of delay, on the ground that medical certificate was not available, is erroneous and contrary to the record. It was further argued that appeal under Section 35G of the Act, 1944 can be file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 35G of the Act, 1944 and the instant petition deserves to be dismissed on the ground of availability of alternative remedy. 6. Heard learned counsel for the parties and perused the material available on record as also the impugned order. 7. So far as contention of the petitioner that Rule 20 of the CESTAT (Procedure) Rules, 1982 deserves to be struck off on account of it being inconsistent with the provisions of Section 35C of the Central Excise Act, 1944, is concerned, we do not deem it necessary to decide this issue in this matter as from perusal of the impugned order, it is evident that the Tribunal has dismissed the application for condonation of delay in filing the appeal on the ground that the application is not sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [Please see: Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and others, (2003) 2 S.C.C. 107]. 10. In the matter of State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another reported in (2005) 6 S.C.C. 499, the Hon'ble Supreme Court, while dealing with the plea regarding alternative remedy raised by the appellant, observed that the power relating to alternative remedy is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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