TMI Blog2021 (2) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... icial custody. During the search and seizure operations, statements of other witnesses were also recorded and the material, inculpatory in nature, recovered from the conscious possession of the petitioners/associated persons and premises. The search was conducted at different places in the States of Chhatisgarh, Jharkhand and Bihar - With the completion of search and seizure operations, petitioners and associated persons were issued notices for carrying out the adjudicatory proceedings under the Central Excise Act's provisions, 1944 read with Central Excise Rules, 2002. While declining the petitioner's request for cross-examining the witnesses, the adjudicatory authority ultimately passed the impugned order dated 05.10.2018 and corrigendum order dated 22.11.2018. The petition disposed off with the directions that the petitioners have been pursuing the remedy before this Court, hence if petitioners take recourse to remedy provided under the Act, within a period of four weeks, the issue of limitation shall not be allowed to come in the way of it's adjudication on merits and that such proceedings shall expeditiously be decided on merits, per law, preferably within a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly perverse or passed in total/ utter violation of the principle of natural justice, warranting interference by this Court, more so when the mixed question of fact and law are involved. 4. It is not that the Statutory Authority has not acted in accordance with the provisions of the enactment in question; defiance of fundamental principles of judicial procedure; resorted to invoke the provisions already repealed; or the procedure adopted and the order is in total violation of the principles of natural justice. 5. In State of U.P. V. Sudhir Kumar Singh; 2020 SCC online page 847 , the Apex Court has culled out certain guiding principles for entertaining a petition under Article 226 of the Constitution of India alleging breach of principles of natural justice. They are:- (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Ors.; (1973) 2 SCC 438, Union of India v. Alok Kumar; (2010) 5 SCC 349, Authorized Officer, State Bank of Travancore Anr. V. Mathew K.C.; (2018) 3 SCC 85, and upon a decision rendered by a co-ordinate Bench of this Court in ALCATEL Modi Net Work System Limited vs. The State of Bihar Ors.; 2000(2) PLJR 295. 9. It is a settled principle of law that normally a writ court ought not to entertain a petition under Article 226 of India's Constitution in the teeth of availability of an alternative statutory remedy unless, of course, it vitally infringes upon the fundamental rights of the petitioner. What is the parameter warranting the Court to entertain a petition, more specifically concerning the fiscal Statute, is very well laid down by the Apex Court in CIT v. Chhabil Dass Agarwal; (2014) 1 SCC 603. 10. Emphatically, the Court has propounded that no interference, under Article 226 of India's Constitution, is warranted unless, of course, the order passed is in total violation of the principles of natural justice and, given the law propounded in Kanaiyalal Lalchand Sachdev Ors. v. State of Maharashtra; (2011) 2 SCC 782. 11. In our opinion, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Rules 2002. However, I give an option to pay Redemption fine in lieu of confiscation which shall be 50% of the value of the goods. The release of such goods on payment of redemption fine shall be done only after the goods are found to be fit for human consumption and meets the other legal requirement relating to health and safety. . (vii) I further order to confiscate the unaccounted quantity of 2,52,10,000 sticks of non filter and filter cigarettes of various brands valued at ₹ 4,20,68,760/-which had been seized on 30.05.2014 from the undeclared godown of Shri Raju Sultanja situated at Didarganj, Near Godrej Warehouse, Fatuha, Dist Patna under Rule 25 of the Central Excise Rules, 2002. However, I give an option to pay Redemption fine in lieu of confiscation which shall be 50% of the value of the goods. The release of such goods on payment of redemption fine shall be done only after the goods are found to be fit for human consumption and meets the other legal requirement relating to health and safety. . (ix) I order to confiscate the unaccounted quantity of 4,79,500 sticks of filter cigarettes of various brands valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance. (Emphasis supplied) 16. What is important is that the petitioners have not denied the recovery of vast sticks of cigarettes from different premises during search and seizure operations. Before use, it is also not disputed that the petitioners deal with such products. As such, we need not delve any further into the merits of the order because we are convinced that the petitioner has not made out a case for interference in the present petition and all pleas can conveniently be taken in an appeal. 17. In Kanungo (supra), in fact, we find the issue to have been squarely dealt with by Hon ble the Apex Court in relation to Sea Customs Act, 1878 dealing with similar issue and for benefit; we extract the observations made as under: 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person must exhaust the remedies available under the relevant Statute. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and Circumspection. 21. We notice that the Apex Court, in Lakshman Exports Limited (supra), was itself convinced of violation of principles of natural justice resulting into loss suffered by the petitioner therein. Such opinion perhaps emanated from the difference of opinion amongst the Bench members passing the impugned orders. The Apex Court intervened and remanded the matter for adjudication. 22. Similar is the position in Arya Abhushan Bhandar (supra). 23. In Andaman Timber Industries (supra), the Apex Court interfered finding the appellate authority not to have dealt with the plea of prejudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to admission. 7. It is well known that a writ jurisdiction of the High Court is not available in generality when the Statute itself has provided an alternate remedy of an appeal. Maybe, the provision which be the alternate remedy from the business point of view may be irksome and the present assessee may be required to deposit an amount, 20 per cent, before filing the appeal. But, the legislature has structured the Statute, thus. The petitioner may take recourse to an appeal under Section 45 of the Act and may contend whatever he contents before appellate authority. The petitioner is relegated to take recourse to an alternate remedy under Section 45 of the Act. 27. Hence, financial incapacity cannot be a ground for maintaining the present petitions. 28. As such, on both counts, as urged by Shri N.K. Agrawal, learned senior counsel, before us, we see no reason to interfere in the matter; thus, we dispose of the present petitions with the following directions:- (a) Petitioners have been pursuing the remedy before this Court, hence if petitioners take recourse to remedy provided under the Act, within a period of four weeks, the issue of limitation shall not be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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