Skoda Auto India Pvt. Ltd. vs Union of India (UOI)

Preliminary objection regarding maintainability of this petition is taken by the counsel for the respondents. It is not in dispute that the order at page 132 of the compilation, which is impugned in this petition, is passed on an appeal filed by the petitioner before the Commissioners (Appeals) of Central Excise and Customs. The Appellate Authority while dismissing the appeal preferred by the petitioner has made known to the petitioner that if they so desire, may take recourse to remedy of appeal before the Central Excise Service tax Appellate Tribunal. Counsel for the petitioner, however, submits that the Appellate Authority has observed that it has no jurisdiction to pass an order on the interest for which the Commissioner has already passed order and that there was no provision to refund of interest amount prior to 10th May, 2008. In view of this observation, it is argued that if the first Appellate Authority had no jurisdiction and the subsequent appeal being continuation of that appeal, even the Tribunal may not have jurisdiction to grant relief to the petitioner. This argument, though attractive, does not commend to us. In as much as, it is the petitioner who took recourse to remedy of appeal before the Commissioner (Appeals) and invited order dated 13-11-2009. Against such order, there is statutory remedy of appeal which the petitioner will have to exhaust in the first place. Significantly, the petitioner has challenged the correctness of the order passed by the Commissioner (Appeals) by way of present writ petition, which the petitioner can challenge before the Tribunal as per the statutory provision. Relief "B" and "C" are in fact incidental and would be available only if the Petitioner succeeds in setting aside of the order of Tribunal and direction is to be issued to the Authority to consider to grant relief as claimed by the petitioners.

In the circumstances, we are in agreement with the preliminary objection of the respondents that the petitioner has alternative and efficacious statutory remedy of appeal which ought to be exhausted in the first place. Hence, this petition is dismissed with liberty to the petitioner to pursue such other remedy, as may be permissible in law, which will be decided on its own merits, in accordance with law. All questions are left open.

In the event the petitioner were to take recourse of remedy of appeal, we hope and trust that the Appellate Authority will exclude the time spent by the petitioner in pursuing the present petition while computing the limitation.