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TMI Blog2020 (12) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The Petitioner has filed this Petition under Article 226 of the Constitution of India, 1950 for the following reliefs: (a) This Hon'ble Court be pleased to declare that the provisions of Rule 17(2) of the Pan Masala Packing Machines (Capacity, Determination and Collection of Duty) Rules, 2008 (the "Pan Masala Rules") is ultra vires the provisions of Section 3A of the Central Excise Act, 1944 and is unconstitutional; (b) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for calling for the records of the present case and after going through the legality and validity thereof be pleased to quash and set aside the impugned Order dated 21.08.2019 issued by the Respondent No.2. (c) This Hon'ble Court be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or any other appropriate Writ, Order or direction under Article 226 of the Constitution of India restraining the Respondents themselves, their officers, subordinates, servants and agents from taking any further action or adopting any coercive measures to recover the duty, interest or penalty confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2015 under the provisions of Rule 17(2) of the Pan Masala Rules read with section 3A of the Central Excise Act, 1944. 4. Petitioner replied to the SCN vide reply dated 10.7.2019, where a specific request for cross examination of the FDA Officers and the police officers who had drawn the above referred panchanamas was made, which was rejected by the 2nd respondent vide its letter dated 15.7.2019. 5. Petitioner submits that parallel criminal proceedings were initiated against the petitioner under the Food Safety Act where the petitioner has been discharged in respect of the complaints made pursuant to panchanama dated 15.9.2014, 16.9.2014 and 20.8.2015 and in respect of panchanama dated 19.8.2015 this court has granted stay. 6. Subsequently on 21.8.2019, Respondent no.2 passed the impugned order in original whereby demand of excise duty to the tune of Rs. 59,60,53,224 was confirmed against the petitioners along with equivalent penalty under Rule 26 of the Central Excise Rules, 2002. 7. It is the case of the petitioner that the impugned order has been passed without affording an opportunity to the petitioners to cross examine the Investigating Officers which is in contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il the contentions with respect to the petitioners' said request and despite the petitioners' request vide letter dated 31.7.2019 to adjourn the personal hearing by a month for allowing the petitioner to file appeal before the tribunal against the respondents decision rejecting the petitioner's request to cross examine witnesses. Dr. Kantawalla submits that the impugned order in original is also bad in as much as no personal hearing was granted to the petitioner and relies upon paragraph 21 of the said order, which is quoted as under: "C] PERSONAL HEARING 21. The personal hearing in the matter was fixed on 27.12.2018, 30.01.2018, 19.03.2019, 28.03.2019, 11.04.2019, 16.04.2019, 30.04.2019, 30.05.2019 and 31.07.2019. Noticee No.1 and 2 did not attend personal hearing on any of the scheduled dates and sought adjournments on one or other ground. I observe that for nine times personal hearing was fixed in the matter in hand. After filing reply. 21.1 Noticee No.3 neither attend personal hearing nor made any communication in this regard." 10.1 He further submits that although there is a statutory remedy of appeal available against the order and though the petitioners are desirous o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnative remedy of appeal is efficacious and the reason given for not invoking the same i.e. pre-deposit being burdensome does not appeal to us. Accordingly, we relegate the petitioners to the remedy available under the CGST Act by way of appeal. In this context, it would be relevant to refer to the decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, AIR 1983 SC 603, where the Hon'ble Supreme Court observed as under : "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under subsection (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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