TMI Blog2021 (12) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... duty liability of ₹ 45,29,528/- claimed by the petitioners is accepted by the respondents. The petitioners proceed on the footing that the petitioners supplied goods having duty liability as claimed by them and therefore, penalty is excessive. To arrive at the conclusion that the petitioners supplied goods having the duty liability as contended by them obviously necessitates a fact finding exercise. The requirement for 7.5% pre-deposit of the penalty demanded cannot be said to be exorbitant or onerous, more so when it is well settled that when a statute confers a right of appeal, while granting the right, the legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions. There are no reason to entertain the present writ petitions in view of the availability of the alternative statutory remedy of appeal - petition dismissed. - WRIT PETITION NO. 4341 OF 2021 WITH WRIT PETITION NO. 4342 OF 2021 - - - Dated:- 14-12-2021 - DIPANKAR DATTA, CJ M. S. KARNIK, J. Mr. Vinay Ansurkar i/b. Mr. Kartik R. Vig for petitioners. Mr. Dhananjay B. Deshmukh for respondents. P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. Upon payment of duty on the value contracted between the petitioners and MEPL, such manufactured goods were directly being consigned to the buyers of the petitioners in alleged violation of Rule 10A of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (hereinafter referred to as the Valuation Rules for short). Upon searching the factory premises of MEPL, the respondents allege that MEPL was manufacturing excisable goods on job work basis for the petitioners and discharging duty liability as per the contracted price between it and the petitioners, however, the petitioners were issuing commercial invoices to the ultimate customers for the same excisable goods at a higher price as compared to the contracted price. It was also found that apart from the petitioners, MEPL was following a similar procedure for other principal manufacturer namely Danieli India Limited . The statements of various representatives of the petitioners, MEPL and Danieli India Limited came to be recorded on different dates. On 2/4/2017, based on the allegation that MEPL is continuing to follow a similar procedure of assessment and clearance, the factory premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner under Rule 26 of the Rules. G. Imposed penalty of ₹ 1,53,03,329/- Primetals Technologies Private Limited under Rule 26 of the Rules. H. Imposed penalty of ₹ 1,53,03,329/- Danieli India Limited under Rule 26 of the Rules. 7. Learned counsel for the respondents raised a preliminary objection that against the impugned order passed by the Adjudicating Authority, the statutory remedy by way of an appeal with the Commissioner (Appeals) is available. Learned counsel submitted that the remedy of appeal is efficacious and hence, the present petitions should not be entertained by this Court. 8. In response to the preliminary objection raised on behalf of the respondents, learned counsel for the petitioners submitted that the impugned order passed by the 3rd respondent virtually deprives the petitioners from filing an appeal under Section 35F of the said Act against the impugned order, which requires it to deposit 7.5% of the penalty amount, which is a task impossible to perform for the petitioners, as the petitioners have merely issued invoices for goods in respect of which duty of ₹ 45,29,528/- is demandable from MEPL, and thus, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted price. On the plea that the petitioners had merely issued invoices for the goods in respect of which duty demand is ₹ 45,29,528/-, it is contended that the penalty amount demanded is disproportionate. 13. It is material to refer to paragraph 65 of the impugned order, where the respondent no.3 observed thus:- 65. I find that the noticee were manufacturing the excisable goods for the above-mentioned three principal manufacturers who were actually shown as the Buyer on the invoices issued by the noticee and respective actual customers such as M/s. JSW Steel Ltd. and/or M/s. MCL Global, etc. shown as the Consignee . This fact has come on record in the course of the investigation and it shows that the goods were purchased by the concerned principal manufacturers from the noticee and further sold to their customers at the final value (market value or selling price) of the goods. I find that the goods being purchased by the said principals and further re-sold by them to their ultimate customers (end-users) makes them liable for penal provisions of sub-rule (1) of rule 26 of Central Excise Rules, 2002. 14. We have gone through the reply dated January 16, 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would virtually be permitting the machinery created by the said Act to be by-passed. 16. The Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 has held that alternate remedy will not operate as a bar in the contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In our opinion, none of the tests laid down by Their Lordships in Whirlpool Corporation (supra) are satisfied in the present case. The petitioners want to by-pass the remedy of an appeal on the plea that the condition of pre-deposit in exercise of statutory remedy by way of an appeal is onerous and hence, the remedy of an appeal is not efficacious. It is not possible for us to accept this contention. As recently as on November 11, 2021, the Apex Court in Newtech Promoters and Developers Pvt.Ltd. vs. State of UP and others 2021 SCC OnLine SC 1044 in paragraph 137 observed thus: 137. It is indeed the right of appeal which is a crea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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