Dismissed

Kerala State Road Transport Corporation, v. the Commissionr of Central Excise

Kerala HC14 Dec 2021WP(C)/21568/2010

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition filed by KSRTC challenging a CESTAT order. The Court held that since an alternative statutory appeal remedy under Section 35G of the Central Excise Act, 1944 was available and no exceptional circumstances were shown, the writ petition was not maintainable under Article 226.

What did the court decide?

Writ petition dismissed.

Kerala State Road Transport Corporation, Vs the… — Company and Corporate | Kerala HC (2021)

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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 MURALI PURUSHOTHAMAN

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TUESDAY, THE 14^TH DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943

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WP(C) NO. 21568 OF 2010

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PETITIONER:

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KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF LAW OFFICER, SRI.P.SURESH KUMAR.

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BY ADVS.

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SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SHRI.DEEPU THANKAN, SC, KSRTC

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RESPONDENT:

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THE COMMISSIONER OF CENTRAL EXCISE THIRUVANANTHAPURAM.

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SRI.RAJESH B., SC SRI.JOHN VARGHESE,SC SRI.M.S.AMAL DHARSAN, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) 21568/2010

JUDGMENT

This writ petition has been filed mainly seeking the following

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reliefs:-

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“i) To call for the records relating to Ext P1 and set aside the same by the issuance of a writ of certiorari or any other appropriate writ, direction or order;

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ii) To direct CESTAT, Bangalore to reconsider the appeal no.E/COD/210/2006 on merits.”

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The petitioner has preferred an appeal before the Customs,

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Excise and Service Tax Appellate Authority (CESTAT) against Ext.P2 order of the respondent. Ext.P1 is the order passed by the CESTAT dismissing the appeal after rejecting the application for condonation of delay. Against Ext.P1, the petitioner has approached this Court in this proceedings under Article 226 of the Constitution of India.

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A counter affidavit and additional counter affidavit have been filed on behalf of the respondent stating that Ext.P1 order is appealable under section 35G of the Central Excise Act, 1944 which provides for

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W.P.(C) 21568/2010

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an appeal to the High Court and that the petitioner cannot approach this Court under Article 226 of the Constitution without invoking the said alternate statutory remedy. The respondent has also relied on the judgment of this Court in M/s. Punalur Paper Mills Ltd v. Commissioner of Central Excise and Customs [judgment dated 13.02.2014 in W.P.(C) No.4399/2014] wherein it was held that in view of the statutory remedy available under the Central Excise Act, 1944, a writ petition is not maintainable.

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The petitioner has filed a reply to the additional counter

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affidavit filed by the respondent stating that since the writ petition is pending before this Court for the last 11 years, the petitioner may not be relegated to avail the statutory remedy under the Central Excise Act, 1944.

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Heard the learned counsel for the petitioner and the learned standing counsel for the respondent.

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The petitioner has an alternate remedy under section 35G of the Central Excise Act, 1944 before the High Court. In the counter affidavit

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W.P.(C) 21568/2010

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filed by the respondent dated 28.9.2010, it was pointed out that writ petition is not maintainable against Ext.P1 order and there is an alternate remedy available to the petitioner under the Central Excise Act, 1944. In spite of the same, the petitioner did not choose to prefer an appeal under section 35G of the Act. This Court has held in the judgment aforecited that, when a statutory remedy by way of an appeal is maintainable, writ petition under Article 226 shall not be entertained. I do not find any exceptional circumstances warranting interference under Article 226 of the Constitution of India. In the light of the law as aforesaid, without prejudice to the right of the petitioner to pursue the statutory remedy by way of appeal, this writ petition is dismissed.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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W.P.(C) 21568/2010

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APPENDIX OF WP(C) 21568/2010

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PETITIONER'S EXHIBITS:

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Exhibit P1 TRUE COPY OF THE FINAL ORDER NO.1894/2006 AND STAY ORDER NO.1296/2006 AND MISCELLANEOUS ORDER NO.622/2006 DATED 14.11.2006. Exhibit P2 TRUE COPY OF THE ORDER NO.1/2004 DATED 31.08.2004 ISSUED ON 06.09.2004. Exhibit P3 TRUE COPY OF THE DELAY PETITION. Exhibit P4 TRUE COPY OF THE DO LETTER DATED 01.03.2006.

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spc/

Kerala State Road Transport Corporation, v. the Commissionr of Central Excise

Case brief

What is this about?

What did the court decide?

Kerala State Road Transport Corporation, v. the Commissionr of Central Excise

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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