TMI Blog2013 (5) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdiction under Article 226 of the Constitution of India. As suspension of the first part of the impugned order of attachment would merely be an exercise in futility, we refrain from doing so. We consider it appropriate, therefore, to direct the CESTAT to hear and dispose of the stay/waiver petition filed by the petitioner in accordance with law within a period of three weeks from today. - Writ Petition No. 17892 of 2011 - - - Dated:- 5-8-2011 - V.V.S. Rao and Ramesh Ranganathan, JJ. Shri C. Kodandaram, Sr. Counsel and Challa Gunaranjan, Counsel, for the Petitioner. Shri A. Rajasekhar Reddy, SSC, for the Respondent. ORDER The order of attachment dated 23-6-2011, passed by the 1st respondent during the pendency of the stay application before the Central Excise and Customs and Service Tax Appellate Tribunal (for short - CESTAT), is questioned in this Writ Petition as being illegal, arbitrary and in violation of the C.B.E. C. Circular, dated 25-5-2004. 2. Facts, to the extent relevant, are that the petitioner, a private limited company engaged in the manufactured of LPG Cylinders, is registered with the Central Excise Department. The 2nd respondent issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter-affidavit, filed on behalf of respondents 1 to 3, the Assistant Commissioner (Legal) would submit that, as the petitioner had not complied with Rule 8(1) of the Central Excise Rules, a notice of default, in payment of excise duty, dated 23-3-2011 was issued to them covering the period September, 2010 to February, 2011; on their failure to pay the defaulted amount, a further notice dated 15-4-2011 was issued; for arrears of revenue, recoverable under Section 11 of the Act, on show cause notice need be issued; and, since the issue of non-payment of duty by the due date is not disputed, the action initiated by the department is not contrary to the C.B.E. C. Circular, as the circular merely refers to disputed duties; and the defaulted amounts have to be recovered under Section 11 considering them as arrears of revenue. 5. Under the impugned order of attachment dated 23-6-2011, passed under Section 11 of the Central Excise Act, 1944, (for short - the Act ), the Deputy Commissioner, Central Excise ordered that the excisable goods, including capital goods belonging to the petitioner, for a value equivalent to the amount due form them be detained for the purposes of recovering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with the provisions of the Act and the Rules. 8. The circular, relied upon by the petitioner, dated 25-5-2004 stipulates that, in respect of the stay application pending against orders-in-original of the Commissioner before the CESTAT, the Filed Officer should refrain from taking coercive action till expiry of the period of six months from the filing of the stay petition before the CESTAT, or till the disposal of the stay petition whichever is earlier. Rule 31, which empowers the Board to issue instructions consistent with the provisions of the Act, would have no application if the Board Circular is inconsistent with the provisions of the Act. Section 37B of the Act empowers the Board to issue instructions or orders only for (1) the purpose of uniformity in the classification of excisable goods; or (2) with respect to levy of duties of excise on such goods. Prima facie, the Circular dated 25-5-2004 does not fall within either of the aforementioned two categories. 9. In M/s. Lanco Kondapalli Power (supra), a Division Bench of this Court, following the judgment of the Supreme Court in Collector of Central Excise, Patna v. Usha Martin Industries Ltd. - 1997 (94) E.L.T. 460 (S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar case, the CESTAT is of the opinion that deposit of the duty demanded or penalty levied would cause undue hardship to such person, the CESTAT may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of the revenue. 12. Compliance with Section 35F, subject to its proviso, is a pre-requisite for an appeal being entertained under Section 35B of the Act. The CESTAT has the power to grant full or partial waiver of pre-deposit pending disposal of the appeal, in case the appellants seek waiver by filing an application in this regard. In the case on hand, the petitioner is said to have filed an application along with the appeal. 13. As the petitioner has already elected to prefer an appeal to the CESTAT, would this Court be justified in examining the merits, of the order under appeal before the CESTAT, in proceedings under Article 226 of the Constitution of India? The Doctrine of Election suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them. [A.P. State Financial Corpn. v. Gar Re-Rolling Mills - (1994) 2 SCC 647]. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Munindra Kumar v. Rajiv Govil - (1991) 3 SCC 368, the selection process adopted by the State Electricity Board was held to be arbitrary and ultra vires the Rules. Since, however, creation of three more posts, (for the three petitioners), would have required candidates, similarly situated, also to be considered and, as there was only a remote chance of the petitioners being selected, the Supreme Court declined to issue a writ holding that it would be an exercise in futility, and that these were all matters of discretion and not of jurisdiction of the Court. 16. A petition, under Article 226 of the Constitution, may be dismissed on the ground that issuance of a writ will be ineffective, infructuous, unnecessary or futile. If the Court is satisfied that no useful purpose would be served by issuing a writ, it can dismiss the application on that ground alone. As it is not the practice of Courts to issue meaningless writs, the High Court while granting relief, on its being satisfied that issuance of a writ would be ineffective, should consider whether grant of a writ would be an exercise in futility. [Suresh v. Vasant - AIR 1972 SC 1680; Balmadies Plantations Ltd. v. The State of Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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