TMI Blog2002 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... st., Thane (iii) Unit C and D - C-3-Mira Industrial Estate, P.O. Mira, District Thane (iv) Unit E - Ajmera Estate, Western Express Highway, Near Richhi Rich P. Ltd., Versova Village, Ghod Bunder Road, Dist. Thane, had taken out a Central Excise Licence bearing No. I/CH-34/R.IX/Th-III/89, dated 12-1-1989 for the period 1989 to 1993. The assessee filed a Classification List classifying the subject product as "synthetic detergent" manufactured by the assessee-respondent. The dispute between the respondent/assessee and the department started when the said product viz. synthetic detergent were cleared without payment of central excise duty on the basis of the Exemption Notification No. 88/88-C.E., dated 1-3-1988 on the basis of rural status. 4.A show cause notice dated 29-10-1997 being the first show cause notice was issued by the Central Excise Department to the respondent/assessee for the period 1-10-1992 to 30-9-1997 demanding central excise duty in the sum of Rs. 19,31,30,535.61. Three more show cause notices also came to be issued to the respondent-assessee for the subsequent periods based on the identical grounds as were disclosed in the first show cause notice dated 29-10-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary at this stage of the judgment. 9.One more writ petition came to be tagged with the present Writ Petition No. 303 of 2002 being Writ Petition No. 5974 of 2001. 10.The factual matrix drawn from the said second writ petition in narrow compass reveals that the assessee-respondent - M/s. Auto Ignation Ltd. was served with 2 show cause notices based on common allegations that the respondent No. 1 (the respondent/assessee for short) has imported goods without payment of customs duty in terms of exemption contained in Notification No. 203/92-Cus., dated 19-5-1992 though such duty free clearance were not permissible as the same were in breach of the Condition V(a) of the said notification and had also violated the provisions contained in Para 126 of the Handbook of Procedure of Exim Policy, 1992-97. 11.Both the petitions were on our board for admission. Both were called out for hearing one after another. In both the petitions, objection to the maintainability thereof on the ground mentioned in the subsequent para came to be raised at the instance of the respondent/assessee. Considering the identical nature of the preliminary objection raised by the learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be within the sweep of the appellate remedy as provided under Section 35L of the Act. 14.The learned Senior Counsel for the petitioners urged that the expression "among other things" has not been interpreted by any Court so as to assume mandatory inclusion of dispute such as : the present one, as such, it would not be proper to contend that the dispute raised in the petition is within the scope of the appellate remedy provided under Section 35L. The petitioners, therefore, contend that the said remedy cannot be construed as an efficacious remedy or at any rate, an alternate remedy, alternate to the writ jurisdiction of this Court. 15.Learned Counsel Shri Sethna further submitted that the second limb of the dispute raised by the petitioners in the present writ petition relates to the jurisdiction of CEGAT to deal with the question not raised in the appeal filed by the assessee. In his submission, CEGAT acted totally without jurisdiction as an appellate body. The challenge to the order without jurisdiction may not be within the four corners of Section 35L of the Act. 16.The learned Senior Counsel for the petitioners alternatively, submitted that existence of the alternate remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal even though passed at its Delhi Headquarters. It is further held that alternative statutory remedy of appeal to Supreme Court provided in Section 35L of the Central Excise Act against the order of CEGAT would not operate as a bar to the maintainability of such petition." In rejoinder, the learned Counsel for the respondent/assessee refuted all the submissions pressed into service on behalf of the petitioners and went on to reiterate that questions relating to the rate of duty and value of goods for the purposes of assessment are the only questions squarely falls within the four corners of Section 35L of the Act. He placed reliance on the judgment of the Supreme Court in the case of Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs - 1993 (68) E.L.T. 3 (S.C.) = 1993 (4) SCC 320. In this case, in his submission, the Supreme Court was dealing with the dispute with respect to the classification of the goods and the question was whether or not the assessees were covered under exemption notification and the said question was held to be directly and proximately related to the rate of duty and value of goods for purposes of assessment. The following observations made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court went on to contend that the view taken by the Delhi High Court has been confirmed by the Supreme Court. 18.The learned Counsel for the respondents also placed reliance on one more judgment of the Supreme Court in the case of Chanan Singh Sons v. Collector of Central Excise, 1999 (111) E.L.T. 325, wherein the Supreme Court while dealing with similar question observed as under : "This appeal by special leave is preferred against order of the Punjab and Haryana High Court in CWP No. 5781/86, dated February 6, 1987. The appellant challenged before the High Court an order of the Tribunal allowing the appeal of the Revenue. The High Court simply said that the appellant had a statutory alternative remedy and the appellant had to avail that statutory remedy instead of filing writ petition. Accordingly, the High Court dismissed the writ petition. The appellant instead of challenging the order of the Tribunal by availing statutory alternative remedy, has filed this appeal by special leave challenging the order of the High Court. We are of the view that the High Court was right in dismissing the writ petition directing the appellant to avail the statutory alternative reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statute itself. The position is, therefore, clear that extraordinary and discretionary power under writ jurisdiction should be exercised with caution when statutory remedy is sought to be by-passed. In Rashid Ahmed v. Municipal Board, Kairana - AIR 1950 SC 163, the Apex Court laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed in another case, namely, K.S. Rashid Sons v. The Income Tax Investigation Commissioner - AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was however, qualified by the significant words "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. Specific and clear rule was laid down in State of U.P. v. Mohd. Nooh, 1958 SCR 595; AIR 1958 SC 86, as under : "But this rule requiring the exhaustion of statutory remedies before the Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) Supreme 176 = (1998) 8 SCC 1. 21.So far as decision in L. Chandra Kumar's case is concerned, the question before, the Supreme Court was whether decision of the Tribunal under Article 323A or 323 of the Constitution can be subject to the High Court's writ jurisdiction under Article 226/227 of the Constitution. It was held that it could be questioned before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal/Bench fell. Earlier decision in S.P. Sampath Kumar v. Union of India - 1987 (27) E.L.T. 1 was held to be not laying down correct law. The Supreme Court in L. Chandra Kumar's case (supra) was not considering a question of exercise of power under Article 226/227 of the Constitution when a specific statutory remedy under a statute is provided. In fact, as stated above, the position of the Tribunal constituted under the Tribunals Act vis-a-vis the High Court was under Consideration. Under the system that existed prior to L. Chandra Kumar's case (supra) matters were directly brought before the Supreme Court under Article 136 of the Constitution. It was observed by the Supreme Court that the situation was to stand modified in the sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duty of excise for the purposes of assessment. In other words, the issue raised in these petitions directly relates to dispute whether or not they are covered by the exemption notification, which can conveniently be gone into in an appeal filed under Section 35L of the Act. 24.On the above canvas, we are clearly of the opinion that remedy provided under Section 35L of the Act is very much available to the petitioners. At any rate, we are of the opinion that the view taken by the Division Bench of this Court in case of Colour Chem Ltd. (supra) is a proper view and we respectfully follow the same. 25.The CEGAT has recorded reasons in support of its conclusions. Certain factual aspects have also been highlighted in the order. The correctness of factual position and the conclusions drawn, based on factual aspects, can only be appropriately gone into and tested by the appellate authority. We do not think it appropriate to express our opinion about merits since the petitioners have to avail the alternate remedy. In Tin Plate of India Ltd. v. State of Bihar, 1998 (6) SCALE 36, Supreme Court observed that when an alternate and equally efficacious remedy is open to a person, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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