Kandhari Beverages (P) Ltd. and Another vs The Commissioner of Central Excise

M.M. Kumar, J.—This petition filed under Article 226 of the Constitution prays for quashing order dated 30.10.2006/13.11.2006 (P-7), passed by the Commissioner, confirming the demand of Rs. 48,86,066/- u/s 11A of the Central Excise Act, 1944 (for brevity, ''the Act'') along with interest payable as per law. The Commissioner has also imposed a penalty of equal amount u/s 11AC of the Act and proceedings against petitioner No. 2, who is the Managing Director of petitioner No. 1 Company, for confiscation of land, building and plant & machinery, have been dropped.

In para 27 of the writ petition it has been pleaded by the petitioners that the aforementioned order passed by the Commissioner is appealable u/s 35B of the Act before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for brevity, ''the Tribunal'') and the petitioners have not filed any appeal till the date of filing of the instant petition. In the corresponding para of the written statement filed on behalf of the respondent, it has been pointed out that the aforementioned remedy is an effective alternative remedy and u/s 35F of the Act, the Tribunal is empowered to even waive the pre-deposit of duty and penalty in deserving cases of undue hardship.

It appears that after filing of the instant petition, petitioner-company has filed an appeal, bearing No. 728 of 2007, along with Excise Stay Application No. 645 of 2007, against the order dated 13.11.2006(P-7), passed by the Commissioner. The aforementioned appeal along with the application, have been disposed of by the Tribunal on 12.7.2007, by passing the following order:

Applicant submitted that they had also filed writ petition against the same impugned order in the Hon''ble Punjab and Haryana High Court and the Hon''ble High Court has already stayed the operation of impugned order. As the appellant had already approached the Hon''ble High Court for the same relief, therefore, the present appeal is dismissed. However, appellant shall have liberty to ask for restoration of the appeal, if such liberty was granted by the Hon''ble High Court.

Once the remedy of appeal is available, it would ordinarily be proper to relegate the petitioner to avail such a remedy. Therefore, we are not inclined to entertain the instant petition in the face of alternative remedy of appeal u/s 35B of the Act, which in fact, was filed and has been dismissed on account of pendency of the instant petition.

In view of the above, the order dated 12.7.2007 (P-10), passed by the Tribunal is set aside to the extent that appeal has been dismissed on account of the petitioners having approached this Court. We relegate the petitioners to the remedy of appeal and direct the Tribunal to restore the appeal as well as application for stay to its original number, as has been observed in its order dated 12.7.2007, as has been extracted above. The petitioners shall be at liberty to press the application for stay. However, it is made clear that any order passed by this Court shall not be considered to have expressed any opinion on the merit of the controversy raised and the Tribunal shall not be influenced by any such observations.

The writ petition stands disposed of in the above terms.