Calcutta High Court
W.P. 27508 (W) of 2017
M/s. Weaverly Jute Mills Pvt. Ltd.
Union of India & anr.
Mr. Saurabh Bagaria,
Mr. Pranav Sharma … for the petitioner.
Mr. Bhaskar Prasad Banerjee …. For the respondents.
An order dated May 8, 2017 passed by the Commissioner of Central Excise is under challenge in the present writ petition.
By the order impugned, a demand of Rs.17,93,09,373/- has been confirmed by the Commissioner of Central Excise. A penalty of equivalent amount has also been imposed.
The impugned order is appealable.
The petitioner has chosen not to file an appeal. The petitioner has approached the writ Court against such order despite the availability of a statutory appeal.
On the contention that existence of alternative remedy is no bar to the maintainability of a writ petition, reliance is placed on 2015 (320) ELT 711 (All.) (Ganesh Yadav Versus Union of India), (2008)4 Supreme Court Cases 720 [Government of Andhra Pradesh & Ors. Versus P. Laxmi Devi (Smt.)] and (1993) 1 Supreme Court Cases 22 (Shyam Kishore & Ors. Versus Municipal Corporation of Delhi and Anr.).
Ganesh Yadav (supra) has held that, in a given case, the High Court can waive a pre-deposit. In this case, the petitioner has not preferred an appeal and does not intend to do so. Consequently, the question of waiver of pre-deposit does not arise. P. Laxmi Devi (supra) has dealt with the constitutional validity of the provisions of the Stamp Act, 1899. Shyam Kishore (supra) has held that, where the statutory appeal is adequate, resort to writ remedy must be discouraged.
A writ Court is not an appellate authority.
Existence of a statutory alternative remedy is also not an absolute bar to the maintainability of a writ petition. A writ petition is maintainable where the petitioner establishes a breach of Fundamental Rights, breach of principles of natural justice in the decision making process, where the vires of a Statute is under challenge, where the authority has acted wholly without jurisdiction and where the impugned order is substantiated to be perverse. However, a writ Court is slow to intervene when there is a statutory alternative remedy available.
None of those scenarios are available to the writ petitioner in the present case. The Commissioner cannot be said to have acted without jurisdiction. The question of limitation raised by the petitioner before the Commissioner was dealt with by the Commissioner and found against the petitioner. The issue of limitation is a mixed question of fact and law.
In the present case, the writ petitioner seeks to maintain the writ petition on the ground that the issue decided by the Commissioner of Central Excise is vitiated by errors of law apparent on the fact of the record.
In support of such contention, reliance is placed on a judgment of the Hon’ble Supreme Court dated February 13, 2018 rendered in Civil Appeal No.8534 of 2015 (M/s. RDB Textiles Ltd. Vs. Commissioner of Central Excise and Service Tax, Kolkata –IV Commissionerate).
The judgment of the Hon’ble Supreme Court in RDB Textiles Ltd. (supra) is dated February 13, 2018 while the impugned order is dated May 8, 2017.
Consequently, such judgment was not cited before the Commissioner of Central Excise. The Commissioner of Central Excise had no opportunity to consider the same.
It is contended on behalf of the petitioner relying upon 2016 (332) ELT 470 (Cal.) (Artee Overseas Pvt. Ltd. Versus Union of India), 2017 (350) ELT 514(Bom.) (Mycon Construction Ltd. Versus Union of India), 2016 (336) ELT 73 (Del.) [Daya Enterprises Versus CC (Export)], 2015 (323)ELT 271 (All.) (Balrampur Chini Mills Ltd. Versus Union of India) and 2008 (232) ELT 389 (Bom.) (Century Textile & Ind. Ltd. Versus Union of India) that, the authority must deal with the judgments cited before it.
In the present case, it appears from the impugned order that, eighteen judgments were cited before him. He has dealt with all the judgments. He has dealt with some in details while the others he has held not to apply to the facts of the case. It is not a case where it can be said that the judgments cited were ignored in its entirety. According to the Commissioner, some of the judgments cited before him did not have any manner of application to the fact scenario. As a writ Court, I am not minded to interfere if such a view rendered by the adjudicating authority.
The petitioner relies upon 2015 (329) ELT 142 (Tri-Kolkata) ( Hooghly Infrastructure Pvt. Ltd. Versus Commissioner of Central Excise, Kolkata - III) in support of the contention that, the claim raised by the department was barred by limitation. Such an issue has been decided by the impugned order. As a writ Court, I need not enter into the merits of the case, reappraise the evidence as an appellate authority, and arrive at a different conclusion, as suggested by the petitioner, particularly when the petitioner has statutory alternative remedy available to it and has deliberately chosen not to avail of the same.
The contention that an appeal will mean that, the petitioner has to deposit 7.5% of the amount adjudicated as pre-deposit to maintain such appeal is of no consequence. Such contention, by itself, cannot be accepted for the purpose of entertaining a writ petition when there is a statutory alternative remedy available.
Economic hardship or inconvenience cannot be made a ground to maintain a writ petition against an order where the statue provides an appellate forum.
In such circumstances, I find no merit in the present writ petition.
WP No.27508(W) of 2017 is dismissed.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. )