TMI Blog2018 (10) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... posed rule that, in case, where there is an alternate efficacious remedy available, this Court would not normally exercise its discretion to entertain a Petition under Article 226 of the Constitution of India - Therefore, where the order is challenged is without jurisdiction (as opposed to an error within jurisdiction), or the process of decision making is such that it shocks the conscious of the Court and the interference on the above ground does not involve finding of fact and/or elaborate examination of evidence, then in the facts of the case, the Court may exercise its discretion to entertain the Petition. However, it needs to be emphasized that there can be no hard and fast rule in this matter. It is entirely for the Court to decide wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C: All these Petitions under Article 226 of the Constitution of India, challenge a common order dated 31st March, 2017 passed by the Commissioner of Central Excise Act under the Central Excise Act, 1944 (the Act). The common impugned order dated 31st March, 2017 confirms demand for excise duty and also imposes penalties under the Act. 2. The grievance of the Petitioner to the common impugned order dated 31st March, 2017 is that it has been passed without giving an opportunity to the Petitioner to cross examine the person whose statement is being relied upon by the Revenue. Thus, it is submitted that this Court should exercise its writ jurisdiction and set aside the impugned order dated 31st March, 2017. 3. Mr. Walve, learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 5. In support, Mr. Doiphode, invites our attention to para 19 of Chhabil Das Agarwal (supra), which reads as under: 19 Thus, while it can be said that this Court has recognized 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or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Tansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case before it. 7. We find that the impugned order dated 31st March, 2017 has considered and dealt with the issue of grant of cross examination to the Petitioner to come to the conclusion that in these facts, it need not be granted. Thus, if the Petitioner is aggrieved with regard to the manner in which the impugned order has refused to grant cross examination, that is an issue which could be appropriately agitated before the Appellate Authority i.e. the Tribunal. This for the reason that it would require factual determination of whether or not, in the facts and circumstance of the case, the cross examination as requested, ought to be given. Therefore, in the present facts, the impugned order is not an order without jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
