Ankit Steels vs Cestat, New Delhi

Dhirendra Mishra, J.—The petitioner has filed the instant petition and prayed for the following relief:

That the Hon''ble High Court may graciously be pleased to issue suitable orders, directions on writs including writs in the nature of mandamus, certiorari etc.

(i) Quashing impugned order of Tribunal dated 19-9-2005 being Annexure P-11.

(ii) Striking off Rule 20 of the C.E.S.T.A.T. (Procedure) Rules, 1982 in so far as it provides for dismissal of appeal for default of appearance.

(iii) Directing Respondent Tribunal to restore the dismissed appeal of the petitioner to its original number.

(iv) Quashing demand notice of department dated 9/10-11-2005 being Annexure P-12.

(v) Any other relief that the Hon''ble High Court may deem fit.

The Dy. Commissioner of Central Excise ordered recovery of Modvat credit of Rs. 69,409/- and also imposed penalty of Rs. 10,000/- under Rule 173 of the Central Excise Rules, 1944. The appeal preferred by the petitioner against the order of the adjudicating officer was again dismissed by the Commissioner (Appeals) vide order dated 28-4-2003 (Annexure P/4). The petitioner preferred appeal against the appellate order before the Excise Tribunal and the same was finally dismissed on 19-9-2005 by an ex-parte order of Annexure P/11 with the following observation:

Applicants filed this application for condonation of delay in filing the appeal on the ground that the Director, who was concerned with the matter, was hospitalized due to serious illness. Therefore, the appeal could not be filed within the specified time. In the application, it is mentioned that the Medical Certificate is enclosed along with the application. But from the records, it is seen that there is no Medical Certificate enclosed with the application. As the application is not supported by the Medical Certificate, the application is dismissed. Consequently, the appeal is also dismissed.

The petitioner has prayed for striking off Rule 20 of the CESTAT

(Procedure) Rules, 1982, insofar as it provides for dismissal of appeal for default of appearance on the ground that it is inconsistent with the provisions of Section 35C of the Central Excise Act, 1944, which provides that the Tribunal will pass order on appeal after hearing the parties to the appeal and accordingly in the cases of default of appearance, the Tribunal has to decide the case on merits.

Learned counsel for the petitioner submits that the petitioner had annexed covering letter (Annexure P/5) along with memo of appeal. In the covering letter, it is clearly mentioned that five copies of medical certificate have also been enclosed with the memo of appeal. Even otherwise, the check notes of Annexures P/6, P/7 & P/8, prepared by the Registry, do not mention any default that medical certificate is missing. From perusal of the original record of the Excise Tribunal also, it is evident that medical certificate is available with the record. In these circumstances, rejection of the petitioner''s application for condonation of delay, on the ground that medical certificate was not available, is erroneous and contrary to the record.

It was further argued that appeal u/s 35G of the Act, 1944 can be filed against the order passed by the appellate Tribunal u/s 35C on merits, where the Tribunal confirms, modifies or annuls the decision, order appealed against or refers the case back to the authority, which passed such decision or order with such directions as the Tribunal may think fit for a fresh adjudication or decision. In the instant case, there is no adjudication of the dispute between the parties and the Tribunal has refused to entertain the appeal by treating it as barred by limitation by rejecting the application for condonation of delay. Thus, the Tribunal has passed the impugned order under sub-section (5) of Section 35B and the order is not on merits and therefore, no appeal lies against the above order u/s 35G.

On the other hand, Shri Bhishma Kinger, learned counsel appearing for the respondent, argued that the petitioner filed appeal before the Tribunal with certain defaults, as mentioned in the check memos of Annexures P/6, P/7 & P/8. The petitioner was given ample opportunities to remove the defaults as also for personal hearing on various dates. However, neither the defaults, as pointed out, were removed nor the petitioner or its authorized representative appeared before the Tribunal for personal hearing. Finding of the Tribunal is not contrary to record. The instant writ petition is not maintainable also on the ground that the petitioner has an alternative and efficacious remedy of filing appeal against the order of the Tribunal u/s 35G of the Act, 1944 and the instant petition deserves to be dismissed on the ground of availability of alternative remedy.

Heard learned counsel for the parties and perused the material available on record as also the impugned order.

So far as contention of the petitioner that Rule 20 of the CESTAT (Procedure) Rules, 1982 deserves to be struck off on account of it being inconsistent with the provisions of Section 35C of the Central Excise Act, 1944, is concerned, we do not deem it necessary to decide this issue in this matter as from perusal of the impugned order, it is evident that the Tribunal has dismissed the application for condonation of delay in filing the appeal on the ground that the application is not supported by the medical certificate and consequently, the appeal has also been dismissed.

From perusal of the impugned order, it is evident that the Tribunal has considered the application for condonation of delay of 21 days in filing the appeal and the same has been dismissed on the ground that in the application for condonation of delay, it is mentioned that the Director, who was concerned with the matter, was hospitalized due to serious illness, therefore, appeal could not be filed within the specified time and from the record, it is seen that medical certificate to this effect is not enclosed alongwith the application, though in the application the medical certificate is said to have been enclosed. However, from perusal of the original record, we find that medical certificate dated 25-8-2003 issued by one Dr. OP. Agrawal is available with the original record.

So far as argument advanced by learned counsel for the respondent that the petitioner has an efficacious alternative remedy of appeal u/s 35G of the Act, 1944, is concerned, it is settled law that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [Please see: Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, ].

In the matter of State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another reported in (2005) 6 S.C.C. 499, the Hon''ble Supreme Court, while dealing with the plea regarding alternative remedy raised by the appellant, observed that the power relating to alternative remedy is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.

Referring to various decisions of the Constitution Bench, it has been observed that Article 226 of the Constitution confers on all High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

In the instant case, finding of the Tribunal that medical certificate is not available in the record, as mentioned in the application for condonation of delay, is contrary to the original record. The petition has already been admitted for hearing way back in the year 2008 and in these circumstances, we are of the opinion that it would not be just and proper to dismiss this petition at this stage on the ground of availability of alternative remedy.

In the result, we allow the writ petition, set aside the impugned order passed by the Tribunal and remit the matter to the Tribunal for passing appropriate order on application for condonation of delay in filing the appeal before the Tribunal after affording opportunity of hearing to the respective parties. We direct the parties to remain present before the Tribunal on 28th October, 2010. No notice would be necessary to the parties for their appearance before the Tribunal.