TMI Blog2018 (4) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, M/s. Refex Industries Ltd., have filed W.P.Nos.33074 to 33078 of 2017, praying for a writ of declaration, to declare that issuance of the second show cause notice, in F.No.DRI/CZU/VIII/48/ENQ-01/(INT-05)/2015, dated 23/1/2016, issued in pursuance of the order-in-original No.40007/2015, in F.No.CAU/DRI/CHE/19/2015, passed by the Commissioner of Customs (Chennai II) and the consequential proceedings No.50231/2016 in F.No.CAU/DRI/CHE/32/2016, dated 23/9/2016, passed by the second respondent, with reference to the petitioners companies as ultra vires and against the provisions of the Customs Act, 1962 and hence illegal, invalid and non est in the eye of law. 2. By observing that the petitioners therein have an effective and alternative remedy, by way of an appeal, before the CESTAT and that such a prayer cannot be entertained, writ Court, vide, common order, dated 20/12/2017, in W.P.Nos.33074 to 33078 of 2017, dismissed the writ petitions and further observed that dismissal of the same would not prevent the petitioners therein from working out their remedies, in accordance with law, under the provisions of the Customs Act, 1962, if so advised. 3. Mr.Velayutham Pichaiya, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979 SC - 1250), the Hon'ble Apex Court observed that, when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 9. The Hon'ble Apex Court in Titaghur Paper Mills Co. Ltd., v. State of Orissa, reported in 1983 (2) SCC - 433, held as follows: 11. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that 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. 10. The Hon'ble Division Bench of this court in a decision reported in 2005 (2 ) MLJ 246 (M/s.Nivaram Pharma Private Limited Vs. The Customs, Excise and Gold (Control), Appellate Tribunal, South Regional Bench, Madras and Others), has observed that a writ petition is not main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation. 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 or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 12. In United Bank of India Vs. Satyawati Tondon and Others {(2010) 8 SCC 110}, the Hon'ble Apex Court, at paragraph Nos.43 to 45, held as follows:- 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute are under challenge. The Court has recognised some exceptions to the rule of alternative remedy. However, 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 mechanism for redressal or grievance still holds the field. 14. The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court Cases 602}, at para Nos.15 to 18, held as follows:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal Case {Thansigh Nathmal Vs. Supt. of Taxes, AIR 1964 SC 1419}, Titaghur Pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent passed under Section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010. 15. After considering a plethora of judgments, in Union of India and Others Vs.Major General Shri Kant Sharma and Another {(2015) 6 SCC 773}, at para36, the Hon'ble Apex Court held as follows:- The aforesaid decisions rendered by this Court can be summarised as follows:- (i). The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India (Refer: L.Chandrakumar Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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