The Commissioner of Customs and Central Excise vs Maruti Udyog Ltd.

B.J. Shethna, J.—The petitioner, Commissioner of Customs and Central Excise, Customs House, Kandla, has filed this petition under

Articles 226 and 227 of the Constitution challenging the impugned Judgment and order dated 22.2.2001 (Annexure : C) passed by the Customs,

Excise & Gold (Control) Appellate Tribunal, Mumbai (for short ""CEGAT""), whereby the CEGAT had allowed the Appeal of the respondent M/s.

Maruti Udyog Ltd. and quashed and set aside the Order-in-Original.

Preliminary objections regarding the maintainability of this petition is raised by the respondent on the ground that admittedly the petitioner had an

alternative statutory remedy of Reference u/s 130-A of the Customs Act as on 22.2.2001, the day on which the CEGAT had allowed the Appeal

in its favour. On this ground the learned Counsel Shri Sridharan, appearing with Shri Rao, for the respondent submitted that this Court should

dismiss this petition without going into the merits of the case. In support of this preliminary objection, raised by the learned Counsel for the

respondent, reliance is placed on the various Judgments of different Hon''ble High Courts mentioned in Para : 12(2) of the Reply Affidavit.

However, the learned Standing Counsel Shri Malkan for the petitioner submitted that an alternative remedy of Reference was available to the

petitioner but it is not a proper or efficacious remedy as this Court had no jurisdiction or power to grant stay against the impugned Judgment and

order passed by CEGAT at Annexure: C in Reference proceedings. Relying on the Judgment of the Hon''ble Supreme Court in the case of L.

Chandra Kumar v. Union of India and Ors. reported in 1997 (1) GLH 692 Shri Malkan submitted that when the Division Bench of this Court has

already admitted the petition way back on 25.7.2001, then on such preliminary objection raised at a belated stage by the respondent, this Court

should not reject his petition on such ground of alternative remedy being available to the petitioner and this Court should exercise its discretionary

writ jurisdiction and decide the matter on merits.

Merely because this Court had no jurisdiction in reference proceedings to grant stay, could it be said that the petitioner had no remedy ? Relying

on the Judgment of the Hon''ble Supreme Court in the case of Commissioner of Income Tax Vs. Bansi Dhar and Sons, Shri Sridharan, learned

counsel for the respondent submitted that after filing Reference before this Court against the impugned Judgment and order (Annexure:C) passed

by the CEGAT, if the petitioner had approached the CEGAT for staying its order and if the stay was refused then certainly the petitioner could

have approached this Court by way of petition seeking stay against the order passed by the learned CEGAT during the pendency of Reference

proceedings and in absence of it, this Court should not entertain the writ petition.

Shri Sridharan, learned Counsel for the respondent also submitted that L.Chandra Kumar''s case (supra) was considered by different High

Courts in various Judgments and after considering the same the Delhi High Court and other High Courts have held that whenever there is an

alternative statutory remedy available, then in such cases the High Court would not exercise its writ jurisdiction under Article 226/227 of the

Constitution. In support of his submission Shri Sridharan has first relied on the judgment of the Delhi High Court in the case of Perfect Electric

Concern Pvt. Ltd. Vs. Assistant Collector/Commissioner, Central Excise, Speaking for the Division Bench of Delhi High Court Hon''ble R.C.

Lahoti, J. (as His Lordship then was) observed that whenever there is an alternative remedy provided, then High Court should not entertain the

writ petition. This Judgment of the Division Bench of Delhi High Court in Perfect Electric Concern''s case (supra) was later on considered and

relied upon by another Division Bench of the Delhi High Court in the case of M/s. Raipur Grinding Industries Corporation Vs. Union of India and

Others, , the Hon''ble Chief Justice Arijit Pasayat (as His Lordship then was), speaking for the Delhi High Court, considering the case of Perfect

Electric Concern (supra) and other cases, held that nowhere in the Judgment of L. Chandra Kumar''s case (supra) the Hon''ble Supreme Court

stated that statutory remedy provided in the statute by way of appeal to the Apex Court can be by-passed and writ petition filed under Article

226/227 of the Constitution can be entertained by the High Court. Their Lordships further observed that the observation made by the Madhya

Pradesh High Court that by L.Chandra Kumar''s case the provision was rendered redundant does not appear to be correct proposition in law.

Almost similar view was taken by the Bombay High Court in the case of Colour-chem. Ltd. Vs. Union Of India, However, it was submitted by

learned Standing Counsel Shri Malkan for the petitioner that in all those cases cited by the learned Counsel Shri Sridharan for the respondent,

admittedly the statutory remedy of Appeal before the Hon''ble Supreme court was available and without availing of statutory remedy of Appeal

those petitioners tried to approach High Courts and in such type of cases and on facts of those cases High Courts refused to exercise their extra-

ordinary jurisdiction on the ground of alternative remedy. But, in the instant case, the petitioner has no remedy of appeal. He has the remedy of

Reference and in view of the decision of the Supreme Court in case of L. Chandra Kumar (supra) the order can be challenged in the High Court

by way of writ petition. He submitted that once the petition is admitted then this Court should decide it on merits.

In our considered opinion, alternative remedy of Reference cannot be said to be mere formality. It is not only an alternative but also an

efficacious remedy. If the Reference was made against the impugned Judgment and order passed by the Tribunal then by now it would have been

decided. Instead the petitioner thought it fit to file writ petition and make unsuccessful attempt to stay the Judgment and order passed by the

CEGAT allowing the Appeal of the Respondent, knowing fully well that once the Appeal was allowed by the Tribunal there was no question of

granting stay by this Court at the admission stage because grant of stay means allowing the petition before its effective hearing. Therefore, no stay

was granted by this Court while admitting this petition and since last 3 years it is pending before this Court.

It may be stated that this petition was straightway admitted by the Division Bench of this Court way back on 25.7.2001. If the Division Bench of

this Court had first issued the show cause Notice to the other side then this very objection regarding maintainability of the writ petition would have

been raised in the Reply Affidavit by the other side, which they have already taken in their Reply Affidavit and in view of this preliminary objection

the concern Division Bench might have dismissed the petition on the ground of alternative remedy of reference being available to the petitioner.

Under the circumstances, the petitioner can not claim, as a matter of right, that this Court should now decide the matter on merit because it was

admitted and pending before this Court since last 3 years.

It must be stated that the petitioner has directly approached this Court by way of this writ petition under Article 226 and 227 of the Constitution

against the impugned order at Annexure : C passed by the Tribunal without availing an alternative and efficacious remedy of Reference being

available to him. It may be stated that though the prayer for Stay was made by the petitioner in this petition the stay was not granted by the Division

Bench of this Court while admitting this petition on 25.7.2001 and merely Notice was issued as to interim relief making it returnable on 8.8.2001

and thereafter this matter was adjourned from time to time without any order of interim relief passed on it. The grant of interim relief at the stage of

admission and before final disposal of this petition means allowing the writ petition before it was finally heard and decided on merit. There was no

question of granting any interim relief against the impugned Judgment and order passed by the CEGAT when the Appeal filed by the respondent

was fully allowed and the Order-in-Original passed by the Commissioner (Appeal) was set aside. In that view of the matter the excuse given by

the petitioner of not availing the alternative remedy of reference and directly approaching this Court by way of this petition cannot be considered

for deciding it on merit. In fact, there is a consistent practice adopted by this Court not to entertain petition under Article 226/227 of the

constitution when there is an alternative remedy available to the parties, unless extra-ordinary case is made out for exercising its extra-ordinary writ

jurisdiction. Nothing is pointed out by the petitioner for exercising our extra-ordinary jurisdiction in this case.

In view of the above discussion this petition is dismissed only on the ground of its maintainability without going into the merit of the case. Rule

discharged. No order as to costs.