TMI Blog2021 (6) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the statute is not preferable. The practice of filing Writ Petitions without exhausting the statutory appellate remedy is in ascending mode and most of such Writ Petitions are filed with an idea to evade payment of pre-deposit for filing an appeal which is contemplated under the procedures. However, the High Court need not encourage such practise. Respecting the institutions created under the legislations is of paramount importance. The High Court cannot undermine the importance of the appellate forum created under the statute, unless there are compelling reasons. The petitioner in all the Writ Petitions are at liberty to file respective appeals before the appellate forum concerned under Sections 47, 49 and 51, as the case may be, by following the procedures contemplated and in a prescribed format - Petition disposed off. - W.P.Nos.26565, 26566 & 39518 of 2016, 2306 & 2307 of 2017, 10658 to 10661 & 25326 of 2018 and W.M.P.Nos.22755, 22756 & 33802 of 2016, 2293 & 2294 of 2017, 12604 to 12607 & 29474 of 2018 W.P.No.26565 of 2016 - - - Dated:- 17-6-2021 - THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM For the Petitioner : Mr.AR.L.Sundaresan, (Senior Counsel) for M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases are involving mixed question of law and fact, then the aggrieved persons are bound to exhaust the appellate remedy and a rowing enquiry cannot be conducted by the High Court under Article 226 of the Constitution of India. The adjudication of facts are to be done effectively with reference to the documents and evidences to be produced by the parties to the dispute and finding in this regard alone would be assisting the High Court for exercise of powers in a judicial review in a writ proceedings. The scope of judicial review under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures contemplated under the statute or rules, but not the decision itself. Thus, the Appellate remedies are vital for the purpose of fact findings regarding the disputed facts. The High Court based on the affidavits filed by the parties cannot make any finding in respect of the disputed facts as the documents and evidences cannot be examined in a writ proceedings and therefore, this Court is of the opinion that the appellate remedy is to be exhausted by the petitioner in all these Writ Petitions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of this Court in W.A.No.640 of 2021 [M/s.Fourceess Diamond Pvt. Ltd. and another v. The Joint Commissioner of Customs (Air Cargo), Meenambakkam, Chennai] delivered a judgment on 25.02.2021 and the relevant paragraphs are extracted hereunder : 8.After elaborately hearing the learned counsel for the appellants and the learned Senior Standing Counsel appearing for the respondent, we are of the view that the issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act. 9.For the reasons, which we have assigned in the preceding paragraph, the Writ Appeal stands dismissed and the appellants are granted 60 days time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, without reference to the limitation as the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 of the Constitution of India, is not expected to usurp the powers of the appellate authorities by adjudicating the merits of the matter on certain documents and evidences. In the event of adjudication of merits under Article 226 of the Constitution of India in the absence of complete trial with reference to the documents and evidences, there is a possibility of miscarriage of justice, and therefore, the High Court is expected to be cautious, while entering into the venture of adjudication of certain merits with reference to the original documents and evidences produced by the respective parties to the lis. This being the legislative intention, High Court is expected to trust the institutional authorities as well as the hierarchy of institutions contemplated under the Statutes. Institutional respects are of paramount importance for providing complete justice to the parties and the various stages of adjudication are important for the purpose of correcting omissions, commissions, errors in appreciation of evidence, etc. Powers of the High Court under Article 226 of the Constitution of India cannot be extended nor widened so as to allow lay hands on the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper Forum and only after exhausting the statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is loosing the benefit of deciding the matter on merits as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide an unnecessary opportunity to the assessee to escape from the liability merely on the ground on jurisdictional error, which is rectifiable. 19.This being the facts and circumstances established, this Court has no hesitation in arriving at a conclusion that the petitioners are bound to exhaust the appellate remedy, either under Section 128 or Section 129 of the Customs Act, respectively. Thus, the petitioners are at liberty to approach the appellate authority and f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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