Madras High Court
M/S.Kaleesuwari Refinery Pvt. vs The Assistant Commissioner on 11 August, 2021
W.P.No.2701 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.2701 of 2017
M/s.Kaleesuwari Refinery Pvt., Ltd.,
Represented by its Senior Manager – Legal
Mr.George Thomas,
No.5, Mambakkam Road,
Vengaivasal,
Chennai – 73. ...Petitioner
Vs
The Assistant Commissioner,
Office of the Assistant Commissioner
of Central Excise,
Tambaram Division,
40, Ranga Colony, Rajakilpakkam,
Chennai – 73 ... Respondent
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India to issue of Writ of Certiorarified Mandamus, to call for the records of
the Respondent's impugned order in original No.208/2016-Rf dated
11.11.2016 bearing Reference C.No.V/18/50/2016-Rf in so far as it declines
to grant interest on refund of pre-deposited amount of Rs.15,00,000/- and to
quash the same and direct the respondent to sanction interest at 6% from the
date of pre-deposit till date of payment.
1/8
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W.P.No.2701 of 2017
For Petitioner : M/s.R.Anish Kumar
For Respondent : Mr.A.P.Srinivas
Senior Standing counsel
[For Income Tax]
ORDER
The order in original dated 11.11.2016 passed by the respondent is
under challenge in the present writ petition.
2. The Preamble of the impugned order dated 11.11.2016 states that
“any person deeming himself aggrieved by this order may appeal against
the same to the Commissioner (Appeals) at 121, Utthamar Gandhi Salai,
Chennai – 34.”
3. The procedures for filing an appeal is also stated in the Preamble of
the order impugned. Instead of preferring an appeal, the petitioner has
chosen to file the present writ petition.
4. The learned counsel for the petitioner reiterated that the petitioner
deposited the amount pursuant to the orders of this Court and therefore, the
petitioner is entitled for interest for the deposit already made. Admittedly,
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W.P.No.2701 of 2017
the refund has already been given and the petitioner has filed the present
writ petition, claiming the interest part of the refunded amount.
Undoubtedly, if at all, the petitioner is entitled with reference to the disputes
and in accordance with the provisions of the Act, then such interest is to be
paid to the petitioner by following the procedures as contemplated under
law. However, the right and entitlement for interest is to be adjudicated by
the Appellate authority with reference to the documents and evidences made
available. High Court cannot straight away given the relief, granting interest
for the refunded amount for the petitioner. The Appellate authority is the
final fact finding authority and the adjudication is of greater importance for
the purpose of resolving the disputed issues.
5. Preferring an appeal is the rule. Entertaining a Writ Petition before
exhausting the appellate remedy is an exception. Undoubtedly, writ
proceedings may be entertained before exhausting the appellate remedy.
However, it is to be ensured that there is an imminent threat or gross
injustice warranting urgent relief to be granted. Mere violation of principles
of natural justice is insufficient to entertain a writ proceedings under Article
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W.P.No.2701 of 2017
226 of the Constitution of India, as every Writ Petition is filed based on one
or the other ground stating that the principles of natural justice is violated or
statutory requirements are not complied with or there is an illegality or
otherwise. Thus, dispensing with an appellate remedy is to be granted
cautiously in view of the fact that the very purpose and object of legislation
providing an appellate remedy cannot be diluted nor the benefit be denied to
the aggrieved person to exhaust the same. The statutory appellate authorities
are the final fact finding authorities. Thus, the finding to be made by such
appellate authorities with reference to the documents and evidences are of
paramount importance for the purpose of exercise of judicial review by the
High Court under Article 226 of the Constitution of India.
6. The power of judicial review of the High Court under Article 226
of the Constitution of India is to scrutinize the processes through which a
decision is taken by the competent authority by following the procedures as
contemplated, but not the decision itself. Therefore, the routine
entertainment of a Writ Petition by dispensing with appellate remedy is not
preferable and such an exercise would cause injury to the institutional
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W.P.No.2701 of 2017
hierarchy and the importance attached to such appellate institutions. The
appellate institutions provided under the statute at no circumstances be
undermined by the higher Courts. The appellate forums are the final fact
finding authorities and more so, possessing expertise in a particular field.
Thus, the finding of such appellate forums would be a valuable assistance
for the purpose of exercise of judicial review by the High Court under
Article 226 of the Constitution of India. The High Court cannot conduct a
roving enquiry with reference to the facts and circumstances based on the
documents and evidences. Based on the mere affidavits filed by the
litigants, the disputed facts cannot be concluded. Thus, the importance of
fact finding by the appellate forums is of more value for the purpose of
providing complete justice to the parties approaching the Court of law.
7.The point of delay may be an acceptable ground for the purpose of
entertaining a Writ Petition. The practise of filing the Writ Petition without
exhausting the statutory remedies are in ascending mode and such Writ
Petitions are filed with a view to avoid pre-deposits to be made in statutory
appeals and on the ground that the appellate remedies are time consuming.
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W.P.No.2701 of 2017
8. In view of the facts and circumstances, the petitioner is at liberty to
prefer an appeal before the competent authority within a period of four
weeks from the date of receipt of a copy of this order in a prescribed format
and in the event of receiving any such appeal, the Appellate authority shall
consider the same without reference to the delay in filing and dispose of the
appeal on merits and in accordance with law and by affording opportunity to
the writ petitioner. The learned counsel for the petitioner is permitted to
submit additional representations / explanations along with the judgments
relied upon.
9. With these directions, the writ petition stands disposed of. No
costs.
11.08.2021
Speaking order/Non-speaking order
Index : Yes/No
Kak
To
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W.P.No.2701 of 2017
The Assistant Commissioner,
Office of the Assistant Commissioner
of Central Excise,
Tambaram Division,
40, Ranga Colony, Rajakilpakkam,
Chennai – 73.
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis/
W.P.No.2701 of 2017
Kak
W.P.No.2701 of 2017
11.08.2021
https://www.mhc.tn.gov.in/judis/
