P. Vasu Babu vs CEGAT, Chennai

S.R. Nayak, J.—All these writ petitions are directed against the common order made by the CEGAT, dated 23-5-2000 made in Appeal Nos. C/285/98, C/284/98, C/1183/98, C/280/98, C/281/98 and C/283/98.

The main contention raised in these writ petitions is that the Respondent Excise authorities without properly classifying the subject goods have assumed the jurisdiction and levied the duty and therefore the impugned orders suffer from flaw of ''urisdiction. There is no controversy between the parties that against the impugned orders of the CEGAT, the legal remedies are provided under the Central Excise Act, 1944 itself.

Section 35L reads:

"(a) any judgment of the High Court delivered on a reference made (under Section 35G or Section 35H) in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment the High Court certifies to be a fit one for appeal to the Supreme Court or

(b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purpose of assessment."

As per the provision of Section 35L, an appeal shall lie to the Supreme Court. u/s 35G of the Central Excise Act, the Commissioner of Central Excise or any other aggrieved party may seek reference to the High Court on a question of law arising out of any order. Therefore, it is quite clear that against the impugned order of the CEGAT, the Petitioners being aggrieved parties can seek reference of the question of law that has been raised in these writ petitions. However, the learned Counsel for the Petitioners placing reliance on the judgment of the Apex Court in L. Chandra Kumar Vs. Union of India and others, and State of A.P. v. K. Mohanlal and Ors (2), would vehemently urge that by virtue of the above judgments of the Apex Court and the judgments to follow them, this Court has undoubtedly the power of judicial review under Article 226 to review the impugned order of the CEGAT and therefore it is not appropriate for this Court to decline to exercise the power u/s under Article 226 and to direct the Writ Petitioners to avail of that remedy under Sections 35G or 35H of the Act. It cannot be gainsaid that this Court has the power of judicial review to review the impugned orders made by the CEGAT. That is not the question before this Court. The question before the Court is whether this Court should invoke its discretionary jurisdiction under Article 226 of the Constitution of India to review the impugned order of the CEGAT when the Petitioner has equal, efficacious and comprehensive legal remedies under Sections 35G and H of the Act since it is case of the Petitioners that the Respondent authorities of the Excise Department have assumed the jurisdiction wrongly by wrongly classifying the subject goods. That plea can very well be the subject matter of reference as envisaged under Sections 35G and H of the Act. It is well settled that normally, the High Courts do not invoke discretionary power under Article 226 to review the impugned orders, particularly when the party approaching this Court under Article 226 has efficacious alternative statutory remedy.

Since the Petitioners are having such a remedy under Sections 35G and H of the Act, we are not persuaded to exercise the discretionary power under Article 226. Accordingly, the writ petitions are dismissed reserving liberty to the Petitioners to avail the remedy under Sections 35G and H of the Act in accordance with law, if it were so advised. No costs.