9911796707
TMI Blog2007 (1) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, by which order of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as "CEGAT") dated 24-5-2002 is sought to be challenged and prayer has been made for quashing of the order dated 24-5-2002 passed by CEGAT in appeal no. E/882/2002-A, Dr. Sabharwal Mfg. Labs Ltd. v. CCE, Kanpur. 3. Heard learned counsel for the petitioner on the objections of the alternative remedy raised by the respondent. Brief facts giving rise to the present writ petition are that the petitioner preferred a refund claim for l 50,305.71 p. on the ground that their selling price are inclusive in the excise duty and according to sub-section (4)(d)(ii) of Section 4 of Central Excise and Salt Act, 1944 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the appeal before the CEGAT has not been brought on record. The decision of the Tribunal dated 24-5-2002 has also not been brought on record immediately. Amendment application has been filed on 13-2-2004 after twenty months, which came up before this Court on 17-2-2004. On that date, this Court ordered to put up the application with previous papers. No further order has been passed on the amendment application. Against the order of the Tribunal, reference lies under Section 35-H of the Excise Act. 4. Learned counsel for the petitioner submitted that once the writ petition has been admitted on 20-3-2002, same should not be dismissed on the ground of alternative remedy after four years. In support of his contention he relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as alternative remedy against the said order. Despite the writ petition being filed by the petitioner, petitioner filed appeal before the Tribunal. The said appeal was decided on 24-5-2002. Thus, after the decision of the Tribunal, present writ petition has become infructuous. Amendment application has not been allowed till date. On the facts and circumstances of the case, there is no reason to allow the amendment application at this stage. Petitioner should have availed the remedy under Section 35-H of the Excise Act by filing the reference application within the stipulated time. In case if remedy has not been availed within stipulated time, it is the petitioner, who is responsible and no one else. In my view, on the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertain a writ petition. 7. In the case of Union of India and another v. M/s. Balrampur Chini Mills Ltd., Balrampur and Another - 2004 (177) E.L.T. 71 (All.) (supra), order of the Tribunal was dated 5-12-2001 and the writ petition was entertained in the year 2002 but on the objection being raised by the learned Standing Counsel, this Court or 23-5-2003 has dismissed the writ petition on the ground of alternative remedy. This Court held that against the order of the Tribunal, reference lies, thus, writ petition is not maintainable. In the case of Union of India v. Excise and Gold (Control) Appellate Tribunal (Northern Bench), New Delhi and another (Supra) writ petition was entertained in the year 2001 and the writ petition was dismissed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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