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2016 (10) TMI 262 - MADRAS HIGH COURT

2016 (10) TMI 262 - MADRAS HIGH COURT - 2016 (342) E.L.T. 201 (Mad.) - Maintainability - alternative remedy of appeal - invocation with the jurisdiction of the court under Article 226 of the Constitution of India - Held that: - the decision in the case of Nivaram Pharma Private Limited vs. The Customs Excise and Gold (Control), Appellate Tribunal, South Regional Bench Madras and Ors [2005 (3) TMI 160 - MADRAS HIGH COURT] relied upon where it was held that when an alternative and equally efficaci .....

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ks Vs. Commissioner of Central Excise, Tirunelveli [2013 (11) TMI 535 - MADRAS HIGH COURT] relied upon where the officer, who submitted the test report was not examined by the Department nor he is a witness nor any statement has been recorded from him. In fact, the report can be treated as a public record and the contents of the report are a proof to themselves. In such circumstances, the petitioner cannot seek for cross examination of the officer, who gave the report - the contention raised by .....

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Radha Krishnan For the Respondents : Mr. T. R. Senthil Kumar Senior Panel counsel ORDER Heard Mr.Vijay Narayanan learned Senior counsel assisted by Mr.Hari Radha Krishnan, learned counsel for the petitioner and Mr.T.R.Senthil Kumar learned Senior Panel counsel appearing for the Revenue. 2. The Writ Petitions have been filed by a Proprietorship concern and the son of the Proprietor, challenging the order-in-original, dated 29.04.2016, passed by the respondent, by which the goods imported by the .....

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on Express (India) Pvt., Ltd., for import of certain goods declared as Carbon Black Feed Stock (CBFS), which was stuffed in four and six containers respectively. The importer claimed classification of the goods under Customs Tariff No.28030090 attracting rate of duty of 22.583% and self assessed the amount of duty as ₹ 5,09,161/- and ₹ 9,20,551/- respectively with aggregate amount of duty in respect of both the bills of entry as ₹ 14,29,712/-. In order to verify the correctness .....

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hat the colour and viscosity of the sample returned by the Central Laboratory was different from the original sample, he had seen at the time of drawl of sample. Suspecting tampering the said officer had conducted enquiries with all the officers and gathered information and brought the matter to the notice of the Commissioner of Customs, Central Excise, Coimbatore by letter dated 25.01.2014, who in turn ordered the case to be investigated by the Customs Intelligent Unit, (CIU), who had recorded .....

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e had received the pre-filled samples from the importer's son (petitioner in W.P.No.33742 of 2016) and he had handed over the original samples taken from the containers to the importer's son and substituted samples were handed over to the Inspector, ICD, Irugur. Further, in the statement, the Superintendent is said to have stated that he was informed that the goods imported are inferior variety of CBSF and that is why necessity was there for replacement of the sample. Subsequently, sampl .....

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mples covered under Test Memos No.1(3)/2014-15 (CIU) and 1(2)/2014-15(CIU), have been tested as Process Oil and Base Oil respectively. The test reports of CRCL in respect of the four remaining samples indicated that they are off-specification products and that they could be termed as Carbon Black Feed Stock (CBFS) only if they are used for manufacture of Carbon Black. Further, after noting that the importer in his statement stated that he does not use the goods for the manufacture of Carbon Blac .....

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on of the duty with proposal to confiscation the goods and imposed penalty. The petitioner has submitted their objection and an opportunity of personal hearing was granted and the order-in-original was passed. 6. The learned Senior counsel for the petitioner pointed out that test reports have given contrary findings and to demonstrate the same, reference was made to the report, dated 16.09.2014, by the Chief Examiner of the CRCL and it is stated that precisely for this reason, the petitioner sou .....

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e petitioner to cross examine the said authority, who gave the test report, has been denied and this is a good ground for the petitioner to approach this Court, since the defect is an inherent defect, which goes to the root of the matter. To support such proposition, the learned Senior counsel referred to the decision of the Hon'ble Supreme Court in Civil Appeal No.5278 of 2006, dated 04.09.2015, in Commissioner of Central Excise, Nagpur vs. Mattel Toys India Private Ltd., wherein the appeal .....

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submitted that the matter may be remanded to the respondent for fresh consideration and the respondent may be directed to afford an opportunity to the petitioner to cross examine the officer who submitted the test reports. 7. The learned Senior Panel counsel appearing for the Revenue contended that the Writ Petition is not maintainable, as the petitioner has not exhausted the alternate remedy available to them before the Commissioner and all the issues raised by the petitioner are factual and t .....

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the case of Nivaram Pharma Private Limited vs. The Customs Excise and Gold (Control), Appellate Tribunal, South Regional Bench Madras and Ors., reported in (2005) 2 MLJ 246, took note of the various decisions on the said point and held that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative Writ. It will be a sound exercise of discretion to refuse to .....

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6. It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Article 226 of the constitution should not be invoked. This principle applies with greater force regarding tax proceedings. As observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa, : "Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. 7. A Const .....

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ved: "In Titaghur Paper Mills Co. Ltd. v. State of Orissa, A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete stat .....

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cation of public justice require it that recourse may be had to Art. 226of the Constitution. But, then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art.226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter p .....

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osite to the present context. 10. In Sheela Devi v. Jaspal Singh, and Punjab National Bank v. D.C. Krishna, the Supreme Court held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked. 11. In Union of India v. T.R. Verma, the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court .....

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is provided in the Act itself should there be short circuiting of the statutory remedy. This issue was considered after elaborately referring to several decisions and it was held that it is well settled by the series of decisions of the Hon'ble Supreme Court that particularly in tax matters, there should be no short circuiting of the statutory remedies (Titaghur Paper Mills Company Ltd. vs. State of Orissa reported in AIR 1983 SC 603 & Assistant Collector of Central Excise, Chandan Naga .....

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ed at is to relegate the petitioner to avail the alternate remedy. However, it has to be seen as to whether there are any good and valid reasons for not doing so, and the Court proposes to test the contentions raised in this regard. 13. It is brought to the notice of this Court that as against the order passed in W.P.No.24350 of 2016, filed by the Superintendent of Central Excise against the very same order-in-original, dated 29.04.2016, he has filed W.A.No.1171 of 2016 and the Hon'ble Divis .....

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sed on the denial of opportunity to cross examine. The further grievance being that though they relied upon an order of this Court in that regard, the authority did not even take note of the same. The person, whom they seek to cross examine is an officer/Government servant, working as a Chemical Examiner in the Central Revenue's Control Laboratory under the control of the Department of Revenue, Ministry of Finance, Government of India. The said officer is not a witness to the proceedings. No .....

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nt was recorded from the Officer, who submitted the report. In other words, there is no examination in chief , for permitting cross-examination. At best, the report can be taken as it is and the petitioner has to contest his case based on the findings recorded in the report. The petitioner requested an opportunity to cross examine the Officer, who submitted a report. This was considered by the respondent and an order was passed on 29.01.2016, rejecting such a request. This order was not put to c .....

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it would be too late for the petitioner to put forth the case that their request at the time of personal hearing for cross examination should be considered. This argument raised by the learned Senior counsel for the petitioner is therefore rejected. 16. Nextly, it has to be seen as to whether the decision rendered in Thilagarathinam Match Works(supra), will any manner advance the case of the petitioner. The said Writ Petition was filed by an assessee challenging the order passed by the Enquiry O .....

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that the petitioner therein did not state the reason for cross examination. This order was faulted and set aside stating that no reasons need be given for requesting cross examination and the Writ Petition was allowed. 17. Two factual aspects will render the decision inapplicable to the facts of the present case. Firstly, the Writ Petition was challenging an order passed by the Enquiry Officer rejecting request for cross examination. In the instant case, a separate order was passed by the respon .....

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