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DR. SABHARWAL'S MANUFACTURING LABS versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Dr. Sabharwal'S Manufacturing Labs v. Union Of India And Others - WRIT TAX No. 479 of 2002 [2007] RD-AH 540 (10 January 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

RESERVED

CIVIL MISC. WRIT PETITION NO.479 OF 2002

Dr. Sabharwal's Manufacturing Labs.        ....Petitioner

Versus

Union of India and others.     ...Respondents

***************

Hon'ble Rajes Kumar, J.

By means of the present writ petition, petitioner prays for quashing of the order dated 27.12.2001 passed by Commissioner (Appeals), dated 31.12.2001 and the order dated 06.01.1989 passed by Assistant Commissioner, Central Excise, Division-I, Kanpur and the consequential relief.

On the writ petition, Court has directed to file the counter affidavit. The writ petition has not yet been admitted. Amendment application has been filed on 13.02.2004 for the amendment of the writ petition, by which order of The Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as "CEGAT") dated 24.05.2002 is sought to be challenged and prayer has been made for quashing of the order dated 24.05.2002 passed by CEGAT in appeal no.E/882/2002-A,  Dr. Sabharwal Mfg. Labs Ltd. Vs. CCE, Kanpur.

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 Rs.50,305.71p. 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 as "Excise Act") assessable value does not include the amount of excise duty. However, excise duty was paid by them on the selling price inclusive of excise duty. Therefore, the excise duty paid on the element of excise duty was in excess of the excise duty payable during the period July, 1987 to March, 1988. The claim of the refund was rejected by the Assistant Commissioner vide order dated 06.01.1989 on the ground that the excise duty was paid on the invoice value in accordance to the facilities available under the SSI scheme and the refund claim was filed on 29.08.1988 for the period from July, 1987 to March, 1988. Thus, it was barred by limitation as provided under section 11-B of Central Excise and Salt Act, 1944. Against the said order, petitioner filed Writ Petition No.533 of 1989. The aforesaid writ petition was admitted and when it finally came up for hearing on 26.02.2001 it was dismissed on the ground of alternative remedy. Petitioner filed appeal under section 35 of the Excise Act. Appeal was dismissed by the Commissioner (Appeals) by the impugned order dated 06.01.1989, which is annexure-4 to the writ petition. Petitioner filed the present writ petition even though against the impugned order appeal lies before the Tribunal under section 35-B of the Excise Act. It also appears that the petitioner has also filed appeal no.E-882/2002-A against the impugned order before CEGAT and the said appeal has been decided vide order dated 24.05.2002. The fact that the petitioner has filed the appeal before the CEGAT  has not been brought on record.  The decision of the Tribunal dated 24.05.2002 has also not been brought on record immediately. Amendment application has been filed on 13.02.2004 after twenty months, which came up before this Court on 17.02.2004. 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.

Learned counsel for the petitioner submitted that once the writ petition has been admitted on 20.03.2002, same should not be dismissed on the ground of alternative remedy after four years. In support of his contention he relied upon the decision of this Court in the case of Dr. Bal Krishna Agarwal Vs. State of U.P. and another, reported in (1995) 1 SCC, 614. He submitted that under section 35-H of Excise Act limitation to file reference is 180 days, which has been expired. The delay in filing the reference application can not be condoned because this court in Central Excise Reference Application No.(4) of 2001, No. Commissioner of Central Excise, Meerut Vs. M/s Salora International Limited decided on 13.09.2005, has held that section 5 of the Limitation Act does not apply to the reference application under section 35-H of the Excise Act. On these facts, he pleaded that the amendment application be allowed and the petitioner be permitted to challenge the order of CEGAT dated 24.05.2002 and the writ petition be decided on merit.

I have given my anxious consideration to the submissions made by learned counsel for the petitioner.

On the facts and circumstances of the case, I do not find any substance. On the facts stated above, it appears that the petitioner has not chosen the proper remedy. Initially in 1989 though alternative remedy by way of appeal against the order of the Assistant Commissioner was available still writ petition was filed bearing Writ Petition No.533 of 1989, which was dismissed on 26.02.2001 on the ground of alternative remedy. Petitioner again challenged the order of the Commissioner (Appeal) by way of the present writ petition in the year 2002 though there was 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 24.05.2002. 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 circumstances after the decision of the Tribunal in appeal no.E-882/2002-A dated 24.05.2002 present writ petition has become infructuous and is liable to be dismissed on this ground alone.

In a recent decision in the case of Star Paper Mills Ltd. Vs. State of U.P. and others, reported in 2006 NTN (Vol.31), 249, Apex Court on the consideration of the various decisions held that the remedy of the writ petition is absolutely discretionary remedy and should be exercised in extraordinary circumstances if it come to the conclusion that there was a breach of principle of natural justice and the procedure required by the decision has not been adopted. Apex Court held that where statutory remedy is provided in the statute, the writ petition should not be entertained under Article 226 of the Constitution of India. Apex Court held as follows:

There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved hereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

In the case of Union of India and another Vs. M/s Balrampur Chini Mills Ltd., Balrampur and another (Supra), order of the Tribunal was dated 05.12.2001 and the writ petition was entertained in the year 2002 but on the objection being raised by the learned Standing Counsel, this Court on 23.05.2003 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 Vs. 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 18.07.2006 on the ground of alternative remedy.

In the case of U.P. Spinning Co. Ltd. Vs. R.S. Pandey and another, reported in (2005) 8 SCC 264. (Para 11 to 24), Apex Court has set aside the order passed by the High Court in the writ petition on the ground that the High Court should not entertain the writ petition when the statutory remedy was available under the Industrial Disputes Act, 1947 unless exceptional circumstances are made out.

On the facts and circumstances of the case, writ petition is liable to be dismissed as having become infructuous.

In the result, writ petition is dismissed as having become infructuous.

Dt.10.01.07

R./


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