Point of Law: Customs, Excise and Service Tax - Appeal.

ORDER :

1. Impugned in the instant writ petition is order dated 13.06.2007 passed by the Customs, Excise and Service Tax, Appellate Tribunal, New Delhi (for short ‘the Tribunal’) whereunder appeal filed by the petitioner herein against the order of the Commissioner of Central Excise, Jammu and Kashmir, Jammu (for short ‘Commissioner’) dated 26.12.2005 has been dismissed.

2. The petitioner herein in the instant petition while throwing challenge to the impugned order has questioned order of the Tribunal whereunder the appeal of the petitioner has been dismissed wherein the petitioner had questioned the invoking of Rule 26 of the Central Excise Rules of 2002 wrongly by the Commissioner.

3. The order impugned is being challenged inter-alia on the grounds that the same is incorrect, perverse and contrary to the established principles of law.

4. Per contra, respondents in the objections filed to the petition, seek its dismissal primarily on a maiden ground that the writ petition is not maintainable in view of Section 35-L of the Central Excise Act, 1944 (for short ‘the Act’).

5. Having regard to the aforesaid preliminary objections raised, it would be appropriate to address to the said preliminary objections in the first instance and in this regard a reference to Section 35-L of the Act, becomes imperative herein which reads as under:

“35-L. Appeal to Supreme Court - An appeal shall lie to the Supreme Court from:

(a) any judgment of the High Court delivered:

(i) in an appeal made under section 35G.

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003.

(iii) on a reference made under 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 passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court.

(b) any order passed before the establishment of the National Tax Tribunal 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 purposes of assessment.”

6. A bare perusal of the Section 35-L (supra) manifestly envisages a remedy of appeal to the Supreme Court against any judgment and order enumerated therein under clause (a) and (b) there under.

7. Learned counsel for the petitioner being oblivious to the aforesaid legal position yet would contend that the writ petition of the petitioner can be considered and adjudicated upon notwithstanding the availability of alternate remedy of appeal owing to the reason that the writ petition has remained pending before this Court for a considerable period of time since 2007. Learned counsel in support of the said submission referred to judgments reported in 2010 SCC Online Guj. 9513 : 2011 SCC Online Guj. 7707, as also 2013 SCC Online All. 13431.

8. However, the aforesaid submission made by the leaned counsel for the petitioner and the judgments (supra) relied upon in support thereof pales into insignificance, in view of the law laid down by the Apex Court in case titled as Union of India and Another vs. Guwahati Carbon Limited, 2012 (11) SCC 651, where under in Paras 11 and 14 following is noticed:

“Under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act