Narinder Kumar Gupta vs U.O.I And Another
2021 Latest Caselaw 1781 j&K

                                                             Sr. No.



                COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU

CJ Court

Reserved on : 22.12.2021
Pronounced on : 29.12.2021

Case: OWP No. 831 of 2007

Narinder Kumar Gupta                                   .....Appellant/Petitioner(s)

                               Through :- Sh. Jagmohan Bansal, Senior Advocate
                                          with M/s Naveen Bindal, & Ashfaq,
                                          Advocates

                         v/s

U.O.I and another                                               .....Respondent(s)
                               Through :- Sh. Jagpal Singh, CGSC

             CORAM:
             HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                  ORDER

(Per: Javed Iqbal Wani-J)

1. Impugned in the instant writ petition is order dated 13.06.2007

passed by the Customs, Excise and Service Tax, Appellate Tribunal, New

Delhi ( for short 'the Tribunal') whereunder appeal filed by the petitioner

herein against the order of the Commissioner of Central Excise, Jammu &

Kashmir, Jammu ( for short 'Commissioner') dated 26.12.2005 has been

dismissed.

2. The petitioner herein in the instant petition while throwing

challenge to the impugned order has questioned order of the Tribunal

whereunder the appeal of the petitioner has been dismissed wherein the

petitioner had questioned the invoking of Rule 26 of the Central Excise Rules

of 2002 wrongly by the Commissioner.

2 OWP 831 of 2007

3. The order impugned is being challenged inter alia on the

grounds that the same is incorrect, perverse and contrary to the established

principles of law.

4. Per contra, respondents in the objections filed to the petition,

seek its dismissal primarily on a maiden ground that the writ petition is not

maintainable in view of Section 35-L of the Central Excise Act, 1944 (for

short 'the Act').

5. Having regard to the aforesaid preliminary objections raised, it

would be appropriate to address to the said preliminary objections in the first

instance and in this regard a reference to Section 35-L of the Act, becomes

imperative herein which reads as under:-

"35-L. Appeal to Supreme Court.--An appeal shall lie to the Supreme Court from-- 1[

(a) any judgment of the High Court delivered--

(i) in an appeal made under section 35G; or

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;

(iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]

(b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.

3 OWP 831 of 2007

6. A bare perusal of the Section 35-L (supra) manifestly envisages

a remedy of appeal to the Supreme Court against any judgment and order

enumerated therein under clause (a) and (b) there under.

7. Learned counsel for the petitioner being oblivious to the

aforesaid legal position yet would contend that the writ petition of the

petitioner can be considered and adjudicated upon notwithstanding the

availability of alternate remedy of appeal owing to the reason that the writ

petition has remained pending before this Court for a considerable period of

time since 2007. Learned counsel in support of the said submission referred

to judgments reported in 2010 SCC Online Guj 9513, 2011 SCC Online Guj

7707, as also 2013 SCC Online Allahabad 13431.

8. However, the aforesaid submission made by the leaned counsel

for the petitioner and the judgments (supra) relied upon in support thereof

pales into insignificance, in view of the law laid down by the Apex Court in

case titled as Union of India and another vs. Guwahati Carbon Limited,

2012 (11) SCC 651, where under in paras 11 and 14 following is noticed:-

Under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged....

4 OWP 831 of 2007

14. Having said so, we have gone through the orders passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/transportation charges and the insurance charges from the assessable value of the commodity in question. Since what was done by the Tribunal is the determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the Assessee ought to have carried the matter by way of an appeal before this Court under Section 35L of the Central Excise Act, 1944."

9. Indisputably, the case of the petitioner does not fall within the

exceptions laid down by the Apex Court in the judgment Union of India and

others (supra), whereunder the instant petition could be held to be

maintainable even in presence of an alternate remedy. Thus, the petition

entails dismissal and is accordingly dismissed.

                      (JAVED IQBAL WANI)               (PANKAJ MITHAL)
                                  JUDGE                  CHIEF JUSTICE
JAMMU
29.12.2021
Bir