JUDGMENT

( Delivered by T.S.Sivagnanam,J )

This writ appeal, filed by the writ petitioner, is directed against the order dated 09.10.2020 passed in W.P.No.14756 of 2016, which was dismissed on the ground that the appellant has no justifiable reasons to bypass the alternative remedy available under the provisions of the Customs Act before the Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal' for brevity).

2. The writ petition was filed challenging the Order-in-Original No.132/2016 dated 22.02.2016, in and by which, the respondent herein denied the exemption benefit claimed by the appellants by availing the benefit of Customs Notification No.85/2004-Cus dated 31.08.2004 read with Notification No.101/2004-Cus(NT) dated 31.08.2004 in respect of 6 bills of entry for the imports made by the first appellant; ordered for demand of differential duty of Rs.20,85,317/- and for recovery in terms of the proviso to Section 28(1)/Section 28(4) of the Act; ordered for recovery of interest under Section 28AA/Section 28AB and held that the imported goods are liable for confiscation under Section 111(m) and 111(o) of the Customs Act, 1962. Further, since the goods were not physically available, no order of confiscation was passed and imposed a penalty of Rs.20,85,317/- on the first appellant and Rs.3,00,000/- on the second appellant.

3. Mr.Akhil.R.Bhansali, learned counsel for the appellants would vehemently contend that the learned Writ Court ought to have taken note of the fact that the appellants had approached the Writ Court on the ground that initiation of action on the impugned consignments is barred by law and cannot be issued on conjectures and surmises and that the responsibility to prove mis-statement and mis-declaration or fraud, as alleged, is on the Department and there is no shred of evidence or a credible reason to prove the allegation. By referring to various decisions, it is contended that the initial burden is on the Department to prove that the situation as envisaged in the proviso to Section 28 exists and when there are no ingredients for proving suppression or mis-declaration, the appellant was justified in approaching the Writ Court. The learned counsel also drawn our attention to the Interim Rules of Origin for Preferential Tariff Concessions for Trade between India and Thailand and in particular Rule 14 and Rule 20. The learned counsel also referred to a Sample Certificate of Origin and the stand taken by the appellant in their reply dated 29.07.2015 to the Show Cause Notice dated 06.06.2015.

4. Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the respondent seeks to sustain the order passed in the writ petition, by contending that the appellants have an efficient alternate remedy by way of an appeal before the Commissioner of Appeals, which has been clearly mentioned in the order passed by the Joint Commissioner and there is no justification for the appellants to bypass the appeal remedy.

5. First, we take up for consideration the observations made by the learned Writ Court for dismissing the writ petition. The learned Writ Court, by placing reliance on the decision of the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise Vs. Dunlop India limited reported in (1985) 1 SCC 260, opined that the discretionary powers under the writ jurisdiction of this Court cannot be exercised in the case and there is no acceptable explanation from the appellants for not having resorted to alternate remedy provided under the statute.

6. To be noted, that exercise of discretion by a Writ Court, despite availability of an alternate remedy, is a self imposed restriction. There have been many exceptions to the said rule, where the Courts have exercised jurisdiction. In a recent decision of the Hon'ble Supreme Court in the case of Maharashtra Chess Association Vs. Union of India and others reported in (2020) 13 SCC 285, one of the issue was whether a private agreement can oust the writ jurisdict