TMI Blog2017 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 M. P. No. 1 of 2012 - - - Dated:- 21-8-2017 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. D. Vijayakumar For the Respondents : Mr. Kanmani Annamalai JUDGMENT [ Judgment of the Court was made by D. Krishnakumar, J. ] Before the Writ Court, the appellant filed a writ petition to issue a Writ of Certiorarified Mandamus, calling for the records of the respondents culminated in GD No.17/2012 dated 26.11.2012 passed by the first respondent and to quash the same, and consequently direct the respondents to release the goods detained under goods detention notice No.17 dated 26.10.2012. 2. Brief facts of the case is as follows :- The appellant is a registered company under the Delhi Value Added Tax Act and Central Sales Tax Authority. The appellant, on the basis of the purchase order supplied 80 Nos. of Samsung P-3100 Table Phones to M/s. RTL Mobiles Private Limited, Chennai. The said goods were despatched on 25.10.2012, through M/s. Instant Delivery Systems Pvt. Ltd., (Courier Agent) along with CST Bill No.4 dated 25.10.2012 for a sum of ₹ 13,52,000/-. When the aforesaid Clearing Agent was carrying on the goods, officers of the 2nd r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had already paid the Central Sales Tax. Since there is no jurisdiction for demanding the tax and imposing penalty against the appellant, Writ Petition was filed under Article 226 of the Constitution of India, without exhausting the alternative remedy. 6. Learned counsel for the respondents would submit that the said factum raised by the appellant, is a jurisdictional fact. The grounds raised in the present writ appeal cannot be agitated before this Court and that the same can be raised only before the Appellate Authority. He further submitted that when there is an efficacious alternate remedy available, the appellant has to file an appeal before the appellate authority and hence the writ petition itself is not maintainable. However, the Writ Court has passed an order to protect the interest of the parties. For the above said reasons, he submitted that the appeal is liable to be dismissed. 7. Heard learned counsel for the appellant and the learned counsel for the respondents and perused the material available on records. 8. The appellant has filed W.P. No. 32565 of 2012, challenging the impugned order passed by the 1st respondent in GD No. 17/2012 dated 26.11.2012. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged before the assessing officer or the appellate authority. As the disputed facts are involved in the case for decision, the same can be decided by the appellate authority going into the facts of the case. This Court cannot go into the alleged facts. Therefore, there are disputed facts involved in the Writ Petition. In the facts and circumstances of the case, we are first to deal with the maintainability of the Writ Petition under Article 226 of the Constitution in the light of the following decisions:- (a) In Karnataka Chemical Industries ..... vs. Union of India Others reported in 1999 (113) ELT 17 SC : (2000) 10 SCC 13, the Hon'ble Supreme Court has held that there is no reason why the Writ Petition has been filed bypassing the alternative remedy which is provided under the statute. Therefore, the party must exhaust statutory remedy before resorting to the writ jurisdiction. (b) In C.A.Abraham, Uppoottil, Kottayam vs. The Income Tax Officer, Kottayam reported in 1961 AIR 609 : 1961 SCR (2) 765, the Hon'ble Supreme Court has held that the appellant could not be permitted to invoke the jurisdiction of High Court under Article 226 of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act. (f) In the case of Commissioner of Income Tax and others vs. Chhabil Dass Agarwal reported in (2014) 1 Supreme Court Cases 603 following the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes reported in AIR 1964 SC 1419 and as also in Titaghur Paper Mills Co.Ltd., v. State of Orissa reported in (1983) 2 SCC 433 and other similar judgments 15. .....that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. 18. Therefore, in the light of the aforesaid decisions, we are of the considered view that where there is a mechanism for redressal by way of filing an appeal before the appellate authority, especially, in the case of assessment or re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper order passed by the revenue authority, the assessee could not be permitted to abandon the machinery and invoke the jurisdiction of High Court under Article 226 of the Constitution of India. The assessee can very well approach the appellate authority and raise all the grounds urged before this Hon'ble Court. Therefore, there is no warranting circumstances requiring interference with the order passed by the Writ Court and hence, the same is confirmed. Since we find that the Writ Petition itself is not maintainable, before this Court, the appellant may agitate the issue in question before the appellate authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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