GENERAL CEMENT PRODUCTS LTD. THROUGH ITS DIRECTOR, SRI M.K. SHARMA SON OF SRI RAM DEO SHARMA Vs. THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL,

JUDGEMENT

(1.) PRESENT writ petition is directed against the order of Tribunal dated 12.07.2001, which has been passed in appeal.

(2.) LEARNED Standing Counsel has raised the objection that against the said order, reference lies under Section 35 -H of Central Excise Act and, therefore, the writ petition is liable to be dismissed on the ground of alternative remedy. In support of his contention he relied upon the decision of this Court in the case of Union of India and Anr. v. Balrampur Chini Mills Ltd., Balrampur and Anr., 2003 UPTC 982 and recent decision of this Court in Civil Misc. Writ Petition No. 922 of 2001, Union of India v. Excise and Gold (Control) Appellate Tribunal (Northern Bench), New Delhi and Anr. decided on 18.07.2006, in which following the decision referred hereinabove, the writ petition was dismissed on the ground of alternative remedy. Learned Counsel for the petitioner submitted that once the writ petition has been admitted on 22.11.2001, after the lapse of five years, it should not be dismissed on the ground of alternative remedy. In support of his contention he relied upon the decision in the case of Hriday Narain v. : [1970]78ITR26(SC) . He further submitted that the reference also lies to this Court. Therefore, in any view this Court has to adjudicate the issue, therefore, writ petition should not be dismissed on the ground of alternative remedy.

(3.) IN the case of Union of India and Anr. v. Balrampur Chini Mills Ltd., Balrampur and Anr. (Supra), order of the Tribunal was dated 05.12.2001 and the writ petition was entertained in the year 2002 but on the objection being raised by the learned Standing Counsel, this Court on 23.05.2003 has dismissed the writ petition on the ground of alternative remedy. This Court held that against the order of the Tribunal, reference lies, thus, writ petition is not maintainable. In the case of Union of India v. Excise and Gold (Control) Appellate Tribunal (Northern Bench), New Delhi and Anr. (Supra) writ petition was entertained in the year 2001 and the writ petition was dismissed on 18.07.2006 on the ground of alternative remedy. It is not the case that the question which is arising from the order of the Tribunal raised in the present writ petition can not be raised in the reference application. When a forum is provided under the Statute for filing of reference, there is no reason to supercede the said provisions and to file the writ petition asking the Court to adjudicate the matter in the writ petition under Article 226 of the Constitution of India. Apex Court consistently held that where statutory remedy is provided, writ petition should not be entertained. In the case of U.P. Spinning Co. Ltd. v. : (2005)8SCC264 . (Para 11 to 24), Apex Court has set aside the order passed by the High Court in the writ petition on the ground that the High Court should not entertain the writ petition when the statutory remedy was available under the Industrial Disputes Act, 1947 unless exceptional circumstances are made out. Apex Court has also considered the decision in the case of Hriday Narain v. I.T.O. (Surpa). Apex Court held that where under the statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.