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TMI Blog2021 (2) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... .: "(a) For holding the Order-In-Original No. 16/MP/Ayukt/2018 dated 05.10.2018 and the Corrigendum being C. No. V(15)33-Adjn/2014/12895 dated 22.11.2018 issued by the Respondent No. 2 as being illegal, invalid and unsustainable in the eye of law. (b) For issuance of a consequential writ or order or direction upon the respondents to allow the petitioner to grant an opportunity of cross-examination of persons whose statements are relied upon and also officers of the Department in terms of the reply dated 23/24.06.2015 and 18.11.2016; (c) For issuance of a direction to the respondents to supply the entire documents/ evidences to the petitioner upon which they relied upon and passed the impugned order as against the petitioner; (d) For grant of any other relief or reliefs to which the petitioner is found entitled to in the facts and circumstances of the case." 2. Having heard learned counsel for the parties, we consider that preliminary objection raised by Dr. K.N.Singh, learned Addl. S.G., about maintainability of the writ petitions, in the teeth of statutory provisions of availability of an equally alternative remedy stipulated under the Statute (Appeal and Revision, Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a case, and not by the authority who denies natural justice to a person. (5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the nonobservance of natural justice. (Para-39). 6. The grounds of challenge, limited in nature, urged before us, are two fold:- (a) the petitioners are not in a capacity, on account of financial hardship, to meet the condition of prerequisite deposit of the amount, statutorily required for preferring an appeal ; (b) the order violates the principles of natural justice, since witnesses supporting the revenue were not allowed to be cross-examined during the course of adjudicatory proceedings. 7. In support thereof, Shri N.K. Agrawal, learned senior counsel for the petitioners, places reliance upon the decisions rendered by the Apex Court in Lakshman Exports Ltd. v. Collector of Central Excise; (2005) 10 SCC 634, Rajiv Arora vs. Union of India & Ors.; AIR 2009 SC 1100; Andaman Timber Industries vs. Commissioner of C.Ex., Kolkata-II; 2015(324) E.L.T. 641(S.C.) and Arya Abhush ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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. 14. 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 relevant portion of impugned orders reads as under:- "105 In view of the aforesaid discussion and findings. I pass the following orders:- ORDER (i) I confirm the demand of Central Excise Duty including AFD, NCCD, Ed. Cess and Secondary and Higher Ed. Cess ..... ... ... ... (iv) I order to confiscate 16,54,26l sticks of filter cigarettes of 'Sunils Two' &' India 10' brands valued at Rs. 32,38,409/- which were seized on 30.05.2014 from the unregistered cigarette manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, 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. (Emphasis supplied) 15. We find the adjudicatory authority, to consider the requirement of cross-examination of the witnesses, which is reproduced as under: "Defence reply furnished by the noticee no. 1 is limited to cross examination of the entire investigation team, Panch witnesses, Police team and timing of the investigation and search. But on the facts no noticee has uttered any plausible and believable reply. Once Show cause notice has been issued onus is on the noticee to reply. The presumptions and believe of the noticee no. 1 cannot be taken as evidence to counter the evidence adduced by DGCEI. Further, the notice also mention documentary evidence proving the leviability of Central Excise Duty and intent to evade payment of Duty does the objections raised by the noticee no. 1 is not tenable as it has not been substantiated by the noticee no. 1 as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp. 123 & 128, paras 43 & 55). 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 recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislation enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. 26. This Court in ALCATEL Modi Net Work System Limited (supra) itself has observed as under:- "5. In so far as his plea is concerned, the petitioner has filed a petition in the High Court's prerogative with jurisdiction. An objection has been taken in the counter affidavit, already, that if the assessment order is illegal, there is a clear cut recourse to an alternate remedy by way of an appeal under Section 45 of the Act available to the petitioner. On this proposition, it was vehemently argued that once the petition had been accepted at the admission stage, the respondents are barred from raising a plea of alternate remedy and challenging the merits of the contention raised in the petition and the assessment order does not hold and stands negatived as the jurisdiction is of the authority under the Central Sales Tax Act, 1956. The Court is not inclined to accept this suggestion that the respondents may not raise the plea of alternate remedy. Such a plea may be taken at any time as it is a plea of jurisdiction in itself which goes to the root of the matter. 6. Besides, at the High Court for a matter to be heard leave has to be sought unless it is an appeal by right. On a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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