Union of India (UOI) and Others vs Mangal Textile Mills (I) P. Ltd. and Others

These two appeals are directed against the common judgment and order dated 25th February, 2002, passed by the High Court of Gujarat at Ahmedabad in Special Civil Applications Nos. 10588 and 10590 of 2001. By the impugned order, the High Court has set aside the two orders, dated 16th October, 2001 and 25th October, 2001 passed by the Commissioner, Central Excise and Customs, Ahmedabad, denying to Respondent No. 1 Company (hereinafter referred to as "the Assessee") the benefit of special procedure for payment of Central Excise, viz. the Compounded Levy Scheme, under Rule 96ZNA of the Central Excise Rules, 1944 ("the Rules" for short).

The issue involved in both the appeals being identical, these are being disposed of by this common order.

To appreciate the controversy, a brief reference to the background facts would be necessary. These are:

Vide Notification No. 16/2001 -CE (NT) dated 30.04.2001 a new section E-XA, titled as "Processed Textile Fabrics", was inserted in the Rules, containing Rules 96ZNA to 96ZND, providing for special procedure for payment of Excise Duty by an independent textile processor covered under the scheme, subject to the conditions and limitations laid therein. One of the conditions, enumerated in Rule 96ZNB, is that the original value of the investment in the plant and machinery installed in the factory of the independent textile processor of the said goods, as on 1st March, 2001 or on 1st May, 2001 whichever is higher, for an existing factory of the independent textile processor or on the date of making the application under Rule 96ZNA in the case of an independent textile processor commencing production for the first time in a new factory coming into existence after 1st May, 2001 shall not exceed three crore rupees, irrespective of whether such plant and machinery is in use or not, or is in working condition or not, and the independent textile processor shall declare the original value of investment in such plant and machinery installed in his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or Cost Accountant.

Accordingly, in order to avail benefit of the said special procedure, the Assessee filed an application with the Commissioner in the prescribed form, declaring a total investment in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted.

The Commissioner got the application verified through the jurisdictional Deputy Commissioner, who found that the original value of investment in plant and machinery as on 1st March, 2001 was Rs. 3,09,63,727/-. Certain other discrepancies were also detected in the valuation report. Finally, after affording an opportunity of hearing to the Assessee, the Commissioner came to the conclusion that: (i) since the Assessee was having two Open Air Stenters which were being used for heat setting and drying of fabrics, they are excluded from the purview of the Special Procedure in terms of Explanation-II to Rule 96ZNA and (ii) the original value of investment by the Assessee as on 1st March, 2001/1st May, 2001 was Rs. 3,09,63,727/-, which was in excess of the specified ceiling limit of three crore rupees. Consequently, Assessee''s application was rejected. Being aggrieved, the Assessee preferred a writ petition in the High Court under Article 226 of the Constitution, questioning the correctness of the order passed by the Commissioner.

As stated above, the High Court has set aside the order passed by the Commissioner inter alia, on the ground that the Revenue, the Appellants herein, had failed to displace the opinion of Assessee''s Chartered Accountant by bringing on record opinion of another expert. Hence these appeals.

Learned Counsel appearing for the Appellants submits that since the issues, subject matter of writ petition, not only involved the valuation of plant and machinery, even the question of disclosure or non-inclusion of some of the machines like Stenters etc. was also required to be gone into for determining whether the Assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under Article 226 of the Constitution. According to the Learned Counsel, since an alternative statutory remedy by way of appeal before the Customs Excise & Service Tax Appellate Tribunal (for short "the CESTAT") was available to the Assessee, the writ petition should have been dismissed at the threshold.

We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions'' is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution.

But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs Ramchand Sobhraj Wadhwani and Another AIR 1961 SC 1506 , which still holds the field, are quite apposite:

The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.

In Harbanslal Sahnia and Another Vs Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 , enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus:

...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact.

Faced with the situation, Mr. Bagaria, learned senior counsel appearing on behalf of the Assessees, prays that the Respondents may be permitted to file appeals before the CESTAT against the aforenoted orders passed by the Commissioner.

Having regard to the facts and circumstances of the case, we are inclined to accede to the prayer made on behalf of the Assessees.

Accordingly, we allow the appeals; set aside the impugned orders and direct that if the Assessees prefer appeals to the CESTAT, within six weeks from today, the Tribunal shall entertain the appeals after condoning the delay in filing the said appeals and dispose of the same on merits in accordance with law as expeditiously as possible.

There shall be no order as to costs.