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TMI Blog2024 (5) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... sought a writ of mandamus to the effect that respondent no. 2 be directed to allow the benefit of the special rate of value addition for the period 01.04.2017 to 30.06.2017 by considering the application of the petitioner dated 08.02.2023. 2. In order to appreciate the controversy in its right perspective, a brief resume of the events is recorded herein, thus: i) An Industrial Policy was floated by the erstwhile State of Jammu and Kashmir and the Central Government for accelerating the industrial development with a view that the confidence of the investors is uplifted. A notification dated 14.11.2002, in this behalf, was issued exempting goods cleared from units located in specified areas from the duty equivalent to the amount of duty paid by the manufacturer, other than an amount of duty paid by utilization of CENVAT credit was to be refunded in cash. ii) This Notification was followed by notifications dated 27.03.2008; 10.06.2008 and 06.02.2010 amending the earlier notification by granting exemption by way of refund of excise duty to a maximum limit as mentioned in the table in respect of different goods. The Policy, however, permitted the additional fixation of special rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise or Commissioner of Central Excise] as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under Section 35-A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate [Principal Commissioner of Central Excise or Commissioner of Central Excise] under Section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Principal Commissioner of Central Excise or Commissioner of Central Excise], either before or after the appointed day, under Section 35-A, as it stood immediately before that day: [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a ware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise or Commissioner of Central Excise] under Section 35, as it stood immediately before the appointed day, or the [Commissioner (Appeals)] under Section 35-A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal [on its behalf] to the Appellate Tribunal against such order.] [Provided that where the Committee of [Principal Commissioner of Central Excise or Commissioner of Central Excise] differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional [Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise] who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against such order. Explanation.-For the purposes of this sub-section, "jurisdictional Chief Commissioner" means the [Principal Chief Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal [* * *] for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees:" 9. The above referred provision of law makes it explicitly clear that the remedy prescribed under the Act for any aggrieved person of the order of Commissioner, is an appeal before the CESTAT and without availing such remedy, the petitioner ought not to have rushed to this court with a writ petition. 10. The Apex Court in numerous pronouncements has highlighted that alternate efficacious remedy should not be ordinarily given a goby. In Punjab National Bank v. O.C. Krishnan and others (2001) 6 SCC 569, the Supreme Court considered the maintainability of a writ petition filed under Article 227 of the Constitution against an order passed by the Tribunal under Section 19 of the DRT Act and observed as under:- "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Art ..... X X X X Extracts X X X X X X X X Extracts X X X X
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