Dismissed

The Deputy Chief Engineer v. the Union of India

Kerala HC6 Dec 2018WP(C)/11302/2018

Case brief

AI extract

What is this about?

Service-tax and customs challenges raised limitation and statutory-interpretation objections to pursuing appellate remedies. The Court dismissed all three writ petitions because efficacious alternative remedies existed and no exceptional grounds were established. The customs challenge belonged under Section 130 before a Division Bench.

What the court decided

AI extract

The Deputy Chief Engineer Vs the Union of India — Customs and Excise | Kerala HC (2018)

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C.R.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 30TH ASWINA, 1940

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WP(C).No. 68 of 2018

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PETITIONER/S:

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M.A.BABU

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AGED 51 YEARS, S/O. ABDUL SAMAD,KOTTINGAL HOUSE, KUNDALIYUR P.O., THRISSUR DIST. 680616.

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BY ADV. SRI.P.SANJAY

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI-110001.

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2 THE COMMISSIONER OF CUSTOMS APPEALS OFFICE OF THE COMMISSIONER OF CUSTOMS (APPEALS), CUSTOMS HOUSE, COCHIN.

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3 JOINT COMMISSIONER OF CUSTOMS COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, ERNAKULAM-683585.

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BY ADVS. SMT.SREEKALA K.L., CGC SRI.R.HARISHANKAR, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SMT.SREEKALA K.L. CGC SRI.R.HARISHANKAR SC CENTRAL BOARD OF EXCISE AMP CUSTOMS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2018, ALONG WITH WP(C).11302/2018, WP(C).24129/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos.68/2018 &conn.cases 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 30TH ASWINA, 1940

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WP(C).No. 11302 of 2018

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PETITIONER/S:

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THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, TRANSMISSION CIRCLE, PALAKKAD - 678 621. BY ADV. SRI.RAJU JOSEPH (SR.)

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RESPONDENT/S:

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1 THE UNION OF INDIA, REPRESENTED BY SECRETARY (FINANCE DEPARTMENT), NEW DELHI- 110 001.

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2 THE CENTRAL BOARD OF EXCISE CUSTOMS NORTH BLOCK, NEW DELHI- 110 001.

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3 THE CHIEF COMMISSIONER, CENTRAL EXCISE AND SERVICE TAX, OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, I.S. PRESS ROAD, ERNAKULAM - 682 018.

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4 THE DEPUTY COMMISSIONER OF CENTRAL TAX CENTRAL EXCISE, OFFICE OF THE COMMISSIONER OF CENTRAL TAX & CENTRAL TAX, PALAKKAD GST DIVISION, METTUPPALAYAM STREET, PALAKKAD- 678 001.

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5 THE ASSISTANT COMMISSIONER OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, PALAKKAD DIVISION, METTUPPALAYAM STREET, PALAKKAD - 678 001.

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BY ADVS. SRI.KRISHNADAS P.NAIR, CGC SRI.R.HARISHANKAR, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SRI.KRISHNADAS P.NAIR CGC SRI.R.HARISHANKAR SC CENTRAL BOARD OF EXCISE AMP CUSTOMS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2018 ALONG WITH WP(C).68/2018 & WP(C).24129/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos.68/2018 &conn.cases 3

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 30TH ASWINA, 1940

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WP(C).No. 24129 of 2018

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PETITIONER/S:

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THE AYALUR SERVICE CO-OPERATIVE BANK LTD. MUTHALAMADA, AYALUR POST, PALAKKAD DISTRICT - 678510,REP. BY THE SECRETARY.

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BY ADV. SRI.SAJAN VARGHEESE K.

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RESPONDENT/S:

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1 THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE CUSTOMS AND SERVICE TAX, PALAKKAD II DIVISION,PALAKKAD - 678001.

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2 THE COMMISSIONER OF CENTRAL TAXES AND CENTRAL EXCISE APPEALS CR BUILDING, IS PRESS ROAD, COCHIN - 682018.

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BY ADVS. SRI.R.HARISHANKAR, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SRI.R.HARISHANKAR SC CENTRAL BOARD OF EXCISE AMP CUSTOMS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2018 ALONG WITH WP(C).11302/2018& WP(C).68/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Introduction:

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Three petitioners, one of them being a statutory body, filed these writ petitions, despite the alternative statutory remedies they have. They plead that some of the proceedings have been barred by limitation and some other involve intricate interpretation of statutory provisions. Then, will these pleas justify this Court’s ignoring the alternative remedy and invoking its extraordinary original jurisdiction under Article 226 of the Constitution?

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Facts:

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There are three writ petitions, and all of them question the assessment orders at various stages. In W.P.(C) No.11302 of 2018, the Deputy Chief Engineer of the Kerala State Electricity Board Limited (“the Electricity Board”) questions the Ext.P3 assessment order. That order imposes Service Tax on one unit of the Electricity Board. In W.P. (C) No.6 of 2018, the petitioner assails the penalty under Section 12 (a&b) of the Customs Act. In W.P. (C) No.24129 of 2018, the petitioner, a Co-operative Society, suffered the Ext.P1 assessment order and filed the Ext.P2 appeal before the Commissioner of Appeals. But,

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WPC Nos.68/2018 &conn.cases 5

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through the Ext.P3, the Appellate authority rejected the appeal on the grounds of limitation. Though each writ petition raises a distinct issue, they have all been taken up together because the Revenue has taken one consistent stand: These petitioners have an efficacious alternative remedy.

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Given the preliminary objection the Revenue has raised, I will confine myself to only that question of alternative remedy. And I refer to the facts to the extent relevant to decide this preliminary issue.

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As W.P. (C) No.11302/2018 was argued extensively, I first refer to the facts of that case and then decide, what I essentially reckon, the question of law. That is, have the petitioners got an efficacious alternative remedy? This contested claim, however, carries a collateral question too: Have the petitioners made out any exceptional circumstances for themselves to invoke the extraordinary original jurisdiction of this Court under Article 226 of the Constitution of India?

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In W.P.(C).No. 11302/2018, an official of the Electricity Board, which is a legal entity by itself, is the petitioner. I will treat it as one filed by the Electricity Board. In June 2017, the Revenue issued

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WPC Nos.68/2018 &conn.cases 6

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the Ext.P1 show-cause notice, requiring the Board's Transmission Circle at Kozhikode to explain why service tax should not be levied. Despite the Transmission’s Circle’s reply, the assessing authority passed the Ext.P3 order, imposing service tax. Assailing the Ext.P3, the Electricity Board has filed this writ petition.

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Submissions:

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Petitioners’:

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Sri Raju Joseph, the learned Senior Counsel for the Electricity Board, has submitted that the Board collects “testing and inspection fee” from the consumers. It also imposes and collects penalty on the suppliers who supplied the goods belatedly. He submits that both the testing and inspection fee and also the penalty imposed on the suppliers stand exempted from tax, as is evident from Sections 66E(e), 66D(e), and 66D(k) of the Finance Act, 1994.

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The learned Senior Counsel has also drawn my attention to Section 73 of the Act to contend that the very demand is barred by limitation. According to him, the bar of alternative remedy, though discretionary, has definite judicially established limitations. He, then, stresses that if a statute falls foul of the constitutional mandate or if

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WPC Nos.68/2018 &conn.cases 7

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an authority, despite his lacking the power, acts on an issue; in either instance, the ultra vires principle applies. Then, only a Constitutional Court can decide that dispute. He also submits that if the proceedings impugned stand barred by limitation, those proceedings can be challenged before this Court, an alternative remedy notwithstanding. Finally, when an intricate interpretation of a provision is involved, the rule of alternative remedy, the learned Senior Counsel adds, cannot curtail this Court’s adjudicatory power. To support his contentions, he has relied on Whirlpool Corporation v. Registrar of Trade Marks¹ , Popcorn Entertainment v. City Industrial Development Corpn.² , M.P.State Agro Industries Development Corpn. Ltd. v. Jahan Khan³ , Godrej Sara Lee Ltd. v. Assistant Commissioner (AA)⁴ and Madras Bas Association v. Union of India⁵ .

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To sum up his submissions, the learned Senior Counsel

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has strenuously contended that the Electricity Board has 52 units. All have registrations under Service Tax Act as individual entities. As the

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1 AIR 1999 SC 22

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2 ( 2007) 9 SCC 593

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3 (2007) 10 SCC 88

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4 (2009) 14 SCC 338

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5 (2014) 10 SCC 1

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WPC Nos.68/2018 &conn.cases 8

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activities are common for all those units, if the Revenue subjects them to assessment, each adverse order needs to be challenged before the statutory authorities. And for the Electricity Board, it is a challenge one too many; it must go to the appellate authority multiple times. According to him, it is a matter of duplication of proceedings, both repetitive and expensive, affecting the public exchequer.

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In other words, the learned Senior Counsel underlines that the public interest is paramount even in, say, a question of alternative remedy. In the end, the learned Senior Counsel has associated that the first appellate authority or even the Tribunal is illequipped to decide the jurisdictional issues and also limitation, for they need intricate interpretation of Sections 66D(k), 66D(e) and 66E(e) of the Finance Act,1994.

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The counsel for the petitioners in the other two writ petitions have adopted the learned Senior Counsel’s submissions.

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Respondents’:

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On the other hand, Sri Hari Sankar R, the learned Standing Counsel for the Revenue, with equal vehemence, has countered the petitioners’ contentions. To begin with, he has drawn my attention

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WPC Nos.68/2018 &conn.cases 9

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to the proviso appended to Section 73 of the Finance Act, to contend that the assessment is within limitation. According to him, both the first Appellate Authority and the Tribunal, that is CESTAT, are eminently competent to interpret the statutory provisions and to determine whether the assessment is barred by limitation. He also points out that if an issue such as limitation, which does not affect the inherent jurisdiction of the forum, is taken as an exception to the rule of alternative remedy; it will open the floodgates. According to him, only pure questions of fact besides incidental questions of law arise in all the three writ petitions.

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Referring to the other two writ petitions—WP(C) Nos.68 of 2018 and 24129 of 2018—Sri Hari Sankar contends that neither has any valid ground for this Court to disregard the alternative remedy. According to him, in one writ petition the petitioner’s aim is to avoid the statutory stipulation of pre-deposit, and in the other, that is W.P(C) No.11302 of 2018, the petitioner’s aim is to avoid the CESTAT , where limitation comes in the way. Now the petitioner's remedy even before the CESTAT stands barred by time, though.

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WPC Nos.68/2018 &conn.cases 10

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To support his contentions, Sri Hari Sankar relies on Shivram Poddar vs. Income Tax Officer⁶ , Titaghur Paper Mills Co. Ltd v. State Of Orissa⁷ , Sigiguri Municipality v Amalendu Das⁸ , Asst.Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Ltd.⁹

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Eventually, the learned Standing Counsel underlines the importance of limitation; he draws my attention to a commentary on the Law of Limitation by Sri Subramania Iyer, published in 1946. He has referred to a couple of paragraphs in the Introduction to the Commentary.

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Reply:

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In reply, the learned Senior Counsel has submitted that

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the proviso to Section 73 does not apply to the Electricity Board’s case. Then he has drawn my attention to Section 85 of the Finance Act, to hold that if at all an assessee wanted to take recourse to departmental remedies, it ought to have approached the Commissioner of Appeals in two months from the date of the Ext.P3 and with delay by another two months—from the date of its

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6 AIR 1964 SC 1095

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7 (1983) 2 SCC 433

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8 (1984)2 SCC 436

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9 (1985 (1) SCC 260

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receiving the proceedings. According to him, if this Court were to hold that the petitioner had an efficacious alternative remedy, a public utility concern would suffer irreparable hardship because of the rigid time line fixed under Section 85. In the end, the learned Senior Counsel has underlined the importance of a public utility and the adverse impact of hyper technical view on the issue of alternative remedy.

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Heard Sri Raju Joseph, the learned Senior Counsel for the petitioner, and Sri Hari Shankar R, the learned Standing Counsel for the respondents.

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Discussion:

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Alternative Remedy - Sisyphean Burden:

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To begin with, I must acknowledge that both the learned counsel, while sustaining their respective pleas on the alternative remedy, have incidentally trenched upon the merits, as it was inevitable. Those references, I reckon, only provided the background to the controversy and also contextualised the alleged efficacy of the alternative remedy—as the petitioners persisted with the exceptions and the respondent insisted on getting them repelled.

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WPC Nos.68/2018 &conn.cases 12

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The issue of alternative remedy, as this Court has observed in M/s. Indus Logistics v. Commissioner of Central Excise and Customs¹⁰ , is every High Court’s Sisyphean task. To borrow from the Greek mythology, the Court labours on a slippery slope, trying to carry that issue to the precedential pinnacle. Every time the Court rules on it, hoping that to be the last word; the issue in the next case is seen rolled down to the bottom, letting the Court toil once again up the slippery decisional slope. As the precedents proliferate, so do the contradictions.

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To provide the precedential framework to the principle of alternative remedy, I may refer to the oft-repeated judicial assertion: an alternative remedy, even efficacious if it were, cannot by itself denude the Constitutional Court of its power of judicial review. On the exceptions to the alternative remedy, the locus classicus is the Whirlpool Corpn. The exceptions it has recognised are these: (i) when the petitioner’s fundamental rights are affected; ( i i) when the principles of natural justice are violated; or ( ii i) when the impugned proceedings are ultra vires .

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10 Judgment, dt.31.08.2018, in WP (C) No.18531 of 2018

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The Supreme Court recently had an occasion to survey the

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vistas of the alternative remedy; in Union of India v. Shri Kant

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Sharma¹¹ , it has examined over three scores of judgments on the

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issue. Finally, it has summarized in paragraph 36 of the judgment:

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(i) The power of judicial review vested in the High Court under Article 226 is one of the basic features of the Constitution, and any legislation cannot override or curtail the High Court’s jurisdiction under Article 226 of the Constitution of India.

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(ii) The High Court’s jurisdiction under Article 226 and the Supreme Court’s under Article 32 though cannot be circumscribed by any enactment, they will have due regard to the legislative intent evidenced by the Acts and would exercise their jurisdiction consistent with that legislative intent.

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(iii) When the law creates a statutory forum for redressal of grievances, the High Court should not entertain a writ petition, ignoring the statutory dispensation.

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(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.

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(italics supplied)

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11 (2015) 6 SCC 773

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Whirlpool Corporation, to begin with, after considering

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many decisions on the issue, observes that much water has since flowed beneath the judicial bridges, “but there has been no corrosive effect on these decisions which though old, continue to hold the field.” The jurisdiction of the High Court under Article 226 of the Constitution, despite the alternative statutory remedies, remains unaffected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.” Popcorn Entertainment, in fact, reiterates Whirlpool Corporation.

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In Jahan Khan, the Supreme Court has held that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution because of the alternative remedy. But the rule of alternative remedy cannot have universal application. The rule excluding the writ jurisdiction in the wake of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial

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review. Then Jahan Khan, too, enlists those three exceptions to the rule of alternative remedy as does Whirlpool Corporation.

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In one case, the appellant was assessed to value added tax in terms of a notification. It filed a writ petition and challenged the retrospective effect of the notification, too. But the High Court refused to entertain the writ petition, on the ground that the appellant had an alternative remedy—a statutory appeal. On appeal, the Supreme Court in Godrej Sara Lee Ltd., has held that the High Court has committed a serious error in refusing to entertain the writ petition as the validity of the notification could not have been determined by the Revenue authorities. In that context, Godrej Sara Lee Ltd., has also held that when an order of a statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, the alternative remedy may not be a bar.

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Let us put the issue in perspective. In the case of alternative remedy, two adjudicatory forums concurrently exist; one usually a statutory forum, and the other a residuary one, drawing its powers from the very Constitution, that is the Constitutional Court exercising its extraordinary original jurisdiction, as a matter of

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public-law remedy. Here the doctrine of election does not apply: the statutory forum is available ex debito justitiae; the Constitutional forum is available exceptionally—not as of right. In the case of alternative adjudicatory authority, one forum substitutes another; that is, one cedes grounds to the other. Rather it ceases to exist. Then it is a matter of alternative adjudicatory authority or forum. The expression “alternative” in this context, I reckon, is a misnomer; it is, indeed, a compulsive or substitutive adjudicatory authority or forum. That is what fell for discussion in Madras Bar Association Case.

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In Madras Bar Association, National Tax Tribunal Act was challenged. It was challenged on the ground that it affects the basic structure of the Constitution, for the appellate powers vested in the High Court under different statutory provisions stand transferred to a Tribunal. So it is not a question of alternative remedy, but that of a substituted adjudicatory authority. A Constitution Bench has held that the High Court’s adjudicatory powers can definitely be transferred to other courts/tribunals, subject to the satisfaction of norms declared by Supreme Court. Then, the Constitution Bench

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posed unto itself a question: Has the National Tax Tribunal Act transferred any power vested in courts by the Constitution? The answer is in the negative.

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Madras Bar Association has observed that the power of "judicial review" vested in the High Court under articles 226 and 227 of the Constitution has remained intact. Therefore, it must never be overlooked, that since the power of "judicial review" exercised by the High Court under articles 226 and 227 of the Constitution has remained unaltered, the power vested in High Courts to exercise judicial superintendence over the benches of the NTT within their respective jurisdiction has been consciously preserved. I do not, however, think that Madras Bar Association has anything to do with the principle of alternative remedy.

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On the other hand, in the context of the Income-tax Act, the Supreme Court’s three-Judge Bench in Shivram Poddar has held that the Act provides a complete machinery for assessment of tax, and for relief against improper or erroneous orders of the revenue authorities. It is for the revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in

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the matter of assessment of tax. “Resort to the High Court in the exercise of its extraordinary jurisdiction under the Constitution in matters relating to assessment, levy, and collection of income-tax may be permitted” under exceptional circumstances. And those circumstances present themselves “only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess”.

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Shivram Poddar has also held that for the High Court to decide questions which are primarily within the Revenue Authorities’ jurisdiction, it must assume facts which remain to be investigated by the Revenue Authorities. In Titaghur Paper Mills the petitioners had an alternative remedy but came to the High Court. They raised only one question: the impugned assessment orders were a nullity, so they could invoke the High Court’s extraordinary jurisdiction under Article 226 of the Constitution. But the High Court refused to take it as a case lacking inherent jurisdiction or violating the principles of natural justice. So it dismissed the writ

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petition. Then the matter was taken to the Supreme Court. The Supreme Court has endorsed the High Court’s view.

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Titaghur Paper Mills has observed that the petitioners have an equally efficacious alternative remedy by way of an appeal to the prescribed authority and later a second appeal to the Tribunal. It has, in this regard, referred with approval to Raleigh Investment Company Ltd., v. Governor General in Council¹² . In that case, Lord Uthwatt, J., has observed that in the provenance of tax, if the Act provided for a complete machinery” to enable an assessee to effectively question an assessment, it would deny an alternative jurisdiction to the High Court to interfere.

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Finally, Titaghur Paper Mills has observed that under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal. The Act, thus, provides for a complete machinery to challenge an order of assessment and the impugned orders of 12 74 I.A. 50 (as quoted in Titaghur Paper Mills)

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assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution.

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In another case, a municipality charged “a graduated consolidated rate on the annual value of the holdings” in terms of the amended Sections 123 and 124 of the Bengal Municipal Act, 1932. The respondent filed a writ petition and had the recovery stayed. The municipality took the matter to the Supreme Court.

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In Siliguri Municipality, the Supreme Court was “dismayed at the tendency on the part of some of the High Courts to grant interlocutory orders for the mere asking. Normally, the High Courts should not, as a rule, in proceedings under Article 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of a stay in such matters should be an exception and not a rule.”

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Then Siliguri Municipality has observed that a levy or impost does not become bad as soon as a writ petition is instituted assailing the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. Siliguri

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Municipality, however, has not dealt with the alternative remedy. It has disapproved the too-frequent judicial interventions, especially under Article 226 of the Constitution, in tax matters. Yet it has warned against a threshold presumption that a levy or tax is bad.

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We have already seen the Supreme Court’s observations in Titaghur Paper Mills. If the statute provided the petitioners with an efficacious alternative remedy, the High Court cannot ignore, as it were, the complete statutory machinery. Referring to that observation, the Supreme Court, once again, in Dunlop India Ltd., has asserted that Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, should we need recourse to Article 226 of the Constitution. It illustrates two such occasions: where the very vires of the statute are in question or where private or public wrongs are so inextricably mixed up that for preventing public injury and for vindicating public justice a suitor may need constitutional remedies. Then, Dunlop India Ltd., serves a caveat. It observes that the Court, then, must have good and sufficient reason to bypass the alternative

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remedy provided by the statute. Surely matters involving the revenue

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where statutory remedies are available are not such matters.

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Do these writ petitions raise questions which only a Constitutional Court can adjudicate? In other words, is the statutory adjudicatory mechanism under the Finance Act 1994 ill-suited to resolve the disputes the writ petitions have raised?

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Section 66D contains the “negative list of services”. Among

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them found are a few services by the Government or a local authority. The petitioner in WP (C) No.11302 of 2018 claims that the transmission and distribution of electricity by any of its utilities is exempted under Section 66D(k) of the Act. In addition, it claims that its purchasing the materials used for transmission activities is purely sale and purchase stands exempted under Section 66D(e) of the Act. Examined further, the petitioner Board also pleads that the inspection and testing fee it collects is a part of transmission and distribution of electric energy. So it is not based on any special contract. By that reckoning, the inspection and testing fee, the Board asserts, will not fall within the mischief of Section 66E(e) of the Act.

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The next defence the Board raised is the limitation. Section 73 deals with how the Revenue should recover service tax not levied,

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or paid, or short-levied, or short-paid, or erroneously refunded. It should serve a notice on the assessee within eighteen months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice.

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First, we will consider the Electricity Board’s contention on limitation. As is well known, the limitation is a mixed question of fact and of law. Summary adjudication under Article 226 of the Constitution is hardly suited to resolve that dispute. Second, let us consider whether a statutory body can resolve, as the Electricity Board puts it, intricate interpretative issues. Indeed, the Board has laid much emphasis on Whirlpool Corporation. But the Electricity Board or even the petitioners in the other two writ petitions have not complained that the Revenue has trampled on their fundamental rights or violated the principles of natural justice. Nor are the proceedings the Revenue initiated are alleged to be ultra vires.

¶152

Viewed from another perspective, the Electricty Board has not questioned the Revenue’s jurisdiction. In other words, it is not a case of the Revenue’s lacking the inherent, or subject matter, jurisdiction. Then comes interpretation. Intricate or plain,

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interpretation is the daily bread and butter of every adjudicatory— judicial, quasi-judicial—body or even an administrative body. To apply the law to a fact, one must first read the law. The reading entails understanding. And the very understanding is an interpretative process. Interpretation is not a judicial ritual; it is a cognitive process. Period. Even otherwise, legislative interpretation is not the sole prerogative of the Constitutional Court, though the legislative invalidation is.

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The Board’s another plea is that it has 52 Units, and all may face the same problem. Then it will be forced to face 52 distinct proceedings. And it affects the public exchequer. I reckon this plea equally applies to writ petitions, too. An order of stay in one writ petition by an independent Unit will not prevent the Revenue from acting against the Units. That apart, matters of convenience are not exceptional grounds to invoke an extraordinary remedy.

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So I fail to persuade myself to hold that the petitioners have established any exceptional grounds, as laid down in Whirlpool Corporation, for them to disregard the statutory remedies.

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WPC Nos.68/2018 &conn.cases 25

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WP (C) No.24129 of 2018:

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The petitioner has challenged the Appellate Commissioner’s order. In fact, the appellate authority dismissed the appeal as barred by limitation. Against that order, the petitioner ought to have approached the Customs, Excise & Service Tax Appellate Tribunal (“CESTAT”), Bangalore. He has, in fact, failed to plead or establish before this Court any exceptional grounds for it to disregard the alternative remedy and to invoke this Court’s extraordinary original jurisdiction.

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WP (C) No.68 of 2018:

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The issue in this writ petition concerns the declaration of baggage contents under Section 77 of the Customs Act, 1962. The petitioner faces the charge of willfully concealing the goods. Against the Order-in-Original, the petitioner filed a statutory appeal. Unsuccessful, he challenged the appellate order before the CESTAT, Bangalore. That second appeal, too, turned negative. So assailing the CESTAT’s order, the petitioner has filed this writ petition.

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Indeed, the petitioner has approached the right forum: High Court. But he invoked a wrong provision: Article 226 of the

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Constitution. Instead, he ought to have invoked another provision: Section 130 of the Customs Act, 1962. That provision invoked, the challenge must be on a substantial question of law, to be adjudicated by a Division Bench.

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Conclusion:

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I hold that the petitioners in all the three writ petitions— W.P.(C). Nos. 68, 11302 & 24129 of 2018—have failed to establish any grounds warranting this Court’s interference in the matters under Article 226 of the Constitution of India. The petitioners, indeed, have efficacious alternative remedies. So the writ petitins are dismissed.

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No order on costs.

¶168

Sd/-

¶169

DAMA SESHADRI NAIDU

¶170

JUDGE

¶171

WPC Nos.68/2018 &conn.cases 27

¶172

APPENDIX OF WP(C) 68/2018

¶173

PETITIONER'S/S EXHIBITS:

¶174

EXHIBIT P1 TRUE COPY OF THE ORDER IN ORIGINAL DATED 10.12.2014. EXHIBIT P2 TRUE COPY OF THE APPEAL DATED 05.01.2015. EXHIBIT P3 TRUE COPY OF THE ORDER IN APPEAL DATED 22.05.2015. EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 10.12.2015 WITHOUT EXHIBITS. EXHIBIT P5 TRUE COPY OF THE ORDER IN APPEAL DATED 18.07.2017.

¶175

WPC Nos.68/2018 &conn.cases 28

¶176

APPENDIX OF WP(C) 11302/2018

¶177

PETITIONER'S/S EXHIBITS:

¶178

EXHIBIT P1:TRUE COPY OF THE SHOW CAUSE NOTICE DATED 2006-2017

¶179

EXHIBIT P2:TRUE COPY OF THE REPLY TOGETHER WITH THE COVERING LETTER DATED 02-09-2017.

¶180

EXHIBIT P3:TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 4TH RESPONDENT 15-01-2018.

¶181

WPC Nos.68/2018 &conn.cases 29

¶182

APPENDIX OF WP(C) 24129/2018

¶183

PETITIONER'S/S EXHIBITS:

¶184

EXHIBIT-P1: TRUE COPY OF THE ORDER DATED 17.11.2015 PASSED BY THE FIRST RESPONDENT. EXHIBIT-P2: TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 14.03.2017 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT-P3: TRUE COPY OF THE ORDER DATED 30.08.2017 PASSED BY THE 2ND RESPONDENT. Css/

The Deputy Chief Engineer v. the Union of India

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What the court decided

The Deputy Chief Engineer v. the Union of India

Case brief

What is this about?

What the court decided

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