Cummins Technologies India ... vs Deputy Commissioner Office Of ...
2023 Latest Caselaw 3336 MP

                                                               1
                           IN      THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                               ON THE 23 rd OF FEBRUARY, 2023
                                               WRIT PETITION No. 24179 of 2022

                          BETWEEN:-
                          CUMMINS TECHNOLOGIES INDIA PRIVATE LTD
                          THROUGH    AUTHORIZED     SIGNATORY      VAJIRAJ
                          BASVAPATTAN PLOT NO. M5, SECTOR III, SEZ PHASE II,
                          PITHAMPUR, DISTRICT DHAR (MADHYA PRADESH)

                                                                                            .....PETITIONER
                          (SHRI MURTUZA BOHRA, LEARNED COUNSEL FOR THE PETITIONER)

                          AND
                          THE DEPUTY COMMISSIONER, OFFICE OF ASSISTANT
                          COMMISSIONER, CGST AND CENTRAL EXCISE
                          DIVISION II PITHAMPUR DHAR, CENTRAL REVENUE
                          BUILDING 510 SECTOR III INDUSTRIAL AREA
                          PITHAMPUR DHAR (MADHYA PRADESH)

                                                                                           .....RESPONDENT
                          (SHRI PRASANNA PRASAD, LEARNED COUNSEL FOR THE
                          RESPONDENT)

                                 This petition coming on for admission this day, JUSTICE SUSHRUT
                          ARVIND DHARMADHIKARI passed the following:
                                                                ORDER

Heard on the question of admission.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the following reliefs :-

(i) Issue a writ of certiorari, or any order or direction in the nature thereof, quashing the impugned order dated 28.01.2022 passed by respondent and/or Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/24/2023 4:06:32 PM

(ii) Issue a writ of mandamus, order or direction in the nature thereof, directing the respondent to keep the impugned order dated 28.01.2022 in abeyance till the proceedings arising from the four show cause notices dated 11.04.2017, 17.08.2017, 20.12.2017 and 18.05.2018(currently pending before Hon'ble Tribunal) attains finality.

(iii) Issue any other writ, order or direction as this Hon'ble Court may deem just and fair in circumstances of the case.

Preliminary objection is raised by the learned counsel for the respondent to the effect that the impugned order is appealable under Section 35 of the Central Excise Act, 1944 before the Commissioner of Central Excise(Appeals).

Learned counsel for the respondent submitted that identical petitions have been dismissed by this Court on the ground of availability of an efficacious

statutory alternative remedy.

Learned counsel for the respondent relied on the judgment of the Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others (2014) 15 SCC 44 in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam (2017) 8 SCC 611 the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others (2016) 13 SCC 305 it is held that when there statutory appeal is provided, then the said remedy has to be availed.

In view of the aforesaid and also looking to the fact of availability of an efficacious alternative remedy, we do not find it proper to entertain this petitions. Petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised.

Petition is, therefore, dismissed.

Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/24/2023 4:06:32 PM

(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA) JUDGE JUDGE

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Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/24/2023 4:06:32 PM