SARLA PERFORMANCE FIBERS LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The Bench of the CESTAT has formulated in paragraph 9 of its impugned order dated 16 December, 2010 certain points of difference on which a reference has been made to a Third Member. The petition has, however, been filed in this Court under Article 226, in the submission of the counsel, not on that aspect but on an aspect which stands concluded by the decision. In paragraph 8 of the impugned order both the Members have agreed in coming to the conclusion that duty is chargeable under the proviso to Section 3(1) of the Central Excise Act, 1944 on clandestine removals of goods. On this part of the order of the Tribunal viz. holding that duty would be chargeable under the proviso to Section 3(1), an appeal would lie. Since the appeal would pertain to the rate of duty an appeal would lie before the Supreme Court.

(2.) Counsel appearing on behalf of the petitioners submits that a writ should be entertained since the Tribunal ought to have followed the judgment of the Supreme Court in Commissioner of Central Excise v. NCC Blue Water Products Ltd. - 2010 (258) E.L.T. 161 (S.C.). The Tribunal has observed that the decision of the Supreme Court in SIV Industries Ltd. v. Commissioner of Central Excise and Customs - 2000 (117) E.L.T. 281 (S.C.), which was followed in NCC Blue Water, was distinguished by its Larger Bench in Himalaya International Ltd. v. Commissioner of Central Excise - 2003 (154) E.L.T. 580. The correctness of the view of the Tribunal can undoubtedly form the subject matter of an appeal which is available in law.

(3.) In this view of the matter, we are of the considered view that it would be inappropriate for this Court to exercise its writ jurisdiction under Article 226 of the Constitution when an appeal admittedly lies against the decision of the Tribunal. Though there is no absolute bar to the maintainability of a petition under Article 226, a self imposed rule of restraint requires the Court to relegate the parties to the remedy of a statutory appeal when an appeal is provided under the law. This circumstance is coupled with the requirement of judicial propriety when, in a situation such as the present, the appeal lies before the Supreme Court. We accordingly decline to exercise writ jurisdiction under Article 226 only on this ground leaving it open to the petitioners to pursue the remedy available in appeal. The Petition is accordingly dismissed. There shall be no order as to costs.