TMI Blog2022 (2) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... issue touching Article 286 of the Constitution is sought to be raised, we are inclined not to relegate the petitioner to the first appellate remedy but to give it opportunity to prefer an appeal before the Tribunal directly, if it so chooses, so that any infirmity in the impugned order can be brought to its notice, including the decision of this Court in the case of Mahyco Monsanto Biotech (India) Pvt. Ltd. for its correction. It is made clear that such appeal may not be entertained unless the requisite pre-deposit is made by the petitioner for preferring an appeal before the Tribunal. There is a statement in the writ petition that the requisite pre-deposit for approaching the first appellate authority has already been made. If indeed that is so, it would constitute half of the pre-deposit for filing an appeal before the Tribunal. The balance pre-deposit together with an acknowledgment of the amount of pre-deposit that has been made, may be filed along with any appeal that the petitioner may wish to prefer before the Tribunal. In the event the petitioner prefers an appeal before the Tribunal within six weeks from today. Petition disposed off. - Writ Petition No. 12297 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o address us from Mumbai using the hybrid platform. We, accordingly, adjourned hearing of the writ petition till today. However, while so adjourning, we recorded our prima facie view in the relevant order as to why we felt disinclined to entertain this writ petition so that Mr. Sridharan could adequately respond. Such view was based on twin reasons, reading as follows: - (I) Sub-section (4) of section 26 of the Act provides for a limitation period of 60 days for filing appeals before the appellate authority/Tribunal. Evidently, this writ petition has been instituted by the petitioner on 27th August 2020, months beyond expiry of the period of limitation. Having regard to the decision of the Supreme Court reported in AIR 1961 SC 1506 [A.V. Venkateswaran, Collector of Customs, Bombay V. Ramchand Sobhraj Wadhwani anr.] , the petitioner was required to explain what prevented it from approaching the Court before expiry of the limitation period of 60 days to avail the appellate remedy. That has not been explained, and hence the writ petition is not entertainable having been instituted beyond the period of limitation prescribed for preferring an appeal under section 26 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal had expressed its mind in some other matter, it would be an idle formality for the party aggrieved to approach the said tribunal. 7. Mr. Sridharan next submits that law is well settled that if an authority passes an order, which is contrary to a decision of the highest court of the State, and such an order is sought to be challenged before the same high court in a petition under Article 226 of the Constitution of India, the writ petition would be maintainable because an administrative tribunal cannot ignore the law declared by the highest court in the State and initiate proceedings and/ or pass orders in direct violation of the law, as declared by such court. Support has been sought to be drawn from the decision of the Supreme Court reported in 1983 (13) E. L. T. 1342 (S.C.) [East India Commercial Company Ltd. Vs. Collector of Customs, Calcutta]. In this connection, Mr. Sridharan contends that a decision of a coordinate Bench of this Court reported in 2016 SCC OnLine Bom 5274 [Mahyco Monsanto Biotech (India) Pvt. Ltd Vs. The Union of India Ors.] had been referred to in the petitioner s response to the show cause notice. Relying on such decision, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur order dated 14th February, 2022 where a prima facie view was expressed against entertainability of this writ petition. 13. At the outset, we may note the scheme of the MVAT Act. As has been noted in our order dated 14th February, 2022, the MVAT Act provides several fora of appeal to the petitioner. A first appeal is available under section 26(1) of the Act from the order of the Deputy Commissioner, respondent no.3, to the Joint Commissioner. Sub-section (2) of section 26 provides an avenue of a second appeal before the Tribunal. Any party aggrieved by an order of the Tribunal has the option of presenting an appeal to the High Court under sub-section (1) of section 27 and such appeal may be entertained, if the High Court is satisfied that the case involves a substantial question of law. Sections 26 and 27 of the MVAT Act, therefore, comprise a complete code providing for a hierarchy of appeals before different fora, which can look into the grievances that are raised before the concerned forum for justice being administered to the aggrieved appellant. 14. In the present case, the machinery providing appeal is sought to be bye-passed by the petitioner on the ground that the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on a petition under Article 226, for, that would and allow the machinery set up by the concerned statute to be bye-passed. The relevant passage from the decision reads as follows: The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. 19. Drawing guidance from the aforesaid dicta, rendered in connection with matters relating to tax and not any other subject, we are of the considered opinion that since the petitioner has the option of approaching this Court in a different jurisdiction at an appropriate stage, if at all the decision of the Tribunal is adverse to its interest, it would not be prudent in the judicious exercise of discretion to derail the procedure ignoring the law contained in the MVAT Act. 20. We have read the decisions in M/s. Anand Swarup Mahesh Kumar (supra), M/s. Onkarlal Nandlal (supra) and Amara Raja Batteries Ltd. (supra). The appellant in M/s. Anand Swarup Mahesh Kumar (supra) was granted leave to file the appeal directly against the order of the Assistant Commissioner (Judicial), since the question involved in that case had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scretionary too although there can be no gainsaying that the discretion has to be exercised on sound principles of law and not whimsically. 23. We are fully conscious of the law laid down in East India Commercial Company Ltd. (supra), upon which reliance is placed by Mr. Sridharan. Indeed, the law laid down by this Court has to be followed by any court subordinate to it or any authority exercising judicial or quasi-judicial functions amenable to the jurisdiction of this Court. It is true that the petitioner had referred to the decision in Mahyco Monsanto Biotech (India) Pvt. Ltd. (supra) in its response to the show cause notice and such decision was not referred to by the Deputy Commissioner in the impugned order. However, absence of any reference to the decision in Mahyco Monsanto Biotech (India) Pvt. Ltd. (supra) though might render the order dated 24th March, 2022 erroneous, but it has to be treated as an error committed by the Deputy Commissioner in the exercise of his jurisdiction and without having the effect of placing the order beyond jurisdiction. The distinction is fine but real. We, therefore, do not propose to entertain the challenge to the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the Fundamental Right guaranteed to a citizen by Article 19(1)(g) of the Constitution. The petitioner is not a citizen of India and hence, there can be no infringement of Article 19 rights. Rightly so, no pleading to that effect is discerned in the writ petition. 26. To sum up, we are loath to entertain this writ petition by exercising our discretion because (i) the petitioner can approach this Court in its appellate jurisdiction under section 27 of the MVAT Act at the appropriate time; and (ii) the petitioner is free to rely on the decision in Mahyco Monsanto Biotech (India) Pvt. Ltd. (supra) before the appellate authority to have the impugned order reversed since such decision will prevail, if it is applicable, over any previous contra decision of the Tribunal. 27. However, in the peculiar facts and circumstances, viz. pendency of this writ petition on the file of this Court for quite some time and that a Constitutional issue touching Article 286 of the Constitution is sought to be raised, we are inclined not to relegate the petitioner to the first appellate remedy but to give it opportunity to prefer an appeal before the Tribunal directly, if it so chooses, so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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