Madras High Court
M.Ravichandran vs The Assistant Commissioner Of ... on 26 July, 2021
W.P.Nos.12321, 12322 & 12324 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.12321, 12322 & 12324 of 2014
and M.P.Nos.1, 1 & 1 of 2014
M.Ravichandran .. Petitioner in
W.P.No.12321/2014
N.Selvarasu .. Petitioner in
W.P.No.12322/2014
S.Sivakumar .. Petitioner in
W.P.No.12324/2014
Vs.
1.The Assistant Commissioner of Central Excise,
1, Vallalar Nagar, Manjakuppam,
Cuddalore 607 001.
2.The Chief General Manager (Finance)
Corporate Office, Neyveli Lignite Corporation,
Neyveli. .. Respondents in
all W.Ps.
Prayer in W.P.No.12321/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorarified Mandamus, calling for
the records relating to the order in Original No.67/2010-ST dated 07.04.2010
passed by the 1st respondent and the consequential Notice of demand issued
under Sec.87(b)(i) of the Finance Act, 1994 in C.No.V/16/42/09-ST dated
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
10.03.2014 and quash the same as illegal, arbitrary, unreasonable and without
authority of law and further direct the 1st respondent to pass orders afresh
after proper verification of the payments made by the petitioner along with
the challans and on merits in accordance with law.
Prayer in W.P.No.12322/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorarified Mandamus, calling for
the records relating to the order in Original No.27/2011-ST dated 08.11.2011
passed by the 1st respondent and the consequential Notice of demand issued
under Sec.87(b)(i) of the Finance Act, 1994 in C.No.IV/16/STC/331/2009-
ADJ dated 07.03.2014 and quash the same as illegal, arbitrary, unreasonable
and without authority of law and further direct the 1st respondent to pass
orders afresh after proper verification of the payments made by the petitioner
along with the challans and on merits in accordance with law.
Prayer in W.P.No.12324/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorarified Mandamus, calling for
the records relating to the order in Original No.16/2010-ADJ dated
11.01.2010 passed by the 1st respondent and the consequential Notice of
demand issued under Sec.87(b)(i) of the Finance Act, 1994 in
C.No.IV/16/STC/182/2010-ST dated 07.03.2014 by the 2nd respondent and
quash the same as illegal, arbitrary, unreasonable and without authority of
law and further direct the 1st respondent to pass orders afresh after proper
verification of the payments made by the petitioner along with the challans
and on merits in accordance with law.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
(In all W.Ps.)
For Petitioner : Mr.M.A.Mudimannan
For Respondents : Ms.R.Hemalatha (For R1)
Senior Standing Counsel
Mr.N.Nithianandam (For R2)
COMMON ORDER
The Orders-in-Original dated 07.04.2010, 08.11.2011 and 11.01.2010
respectively are sought to be quashed in the present Writ Petitions.
2.The preamble of the orders impugned reveals that "Any person
deeming himself aggrieved by this order may appeal against the same to the
Commissioner of Central Excise, (Appeals), No.26/1, Nungambakkam High
Road, Chennai 600 034 within 3 months from the date of receipt of this order
under Section 85 of Finance Act, 1994 read with Rule 8 of Service Tax
Rules, 1994 in Form ST-4 in duplicate and be verified in the prescribed
manner and be accompanied by a copy of the order appealed against". The
procedures for filing an appeal are also contemplated in the orders impugned.
However, the petitioner, instead of preferring an appeal, has chosen to file the
present Writ Petitions, raising grounds both on merits and on legal grounds.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
3.This Court is of the considered opinion that the importance of an
appeal remedy, at no circumstances, be undermined by the High Court and
findings of the appellate authority would be of greater assistance for the High
Court for exercise of power of judicial review under Article 226 of the
Constitution of India. This apart, adjudication of complete facts by the
appellate authority based on the original records and evidences are not only
important, the legislative intention is to redress the grievances of the
aggrieved person. However, such an exercise cannot be undertaken by the
High Court in a writ proceedings. In the event of not providing an
opportunity to an aggrieved person to exhaust the appellate remedy,
undoubtedly the aggrieved person is not only deprived of an opportunity for
complete adjudication of the facts and the grounds of law, but there is a
possibility of error, commission and omission by the High Court in view of
the fact that the High Court is deciding certain facts only based on the facts
filed by the respective parties. All these aspects are very much important. In
most of the circumstances, the parties who are filing Writ Petitions are
narrating the facts to suit their convenience and entire facts are not placed
some times or the litigants are of the opinion that those facts may not be
required for the purpose of deciding the Writ Petitions. Opinions in this
regard, offered by the legal brains, are taken into consideration by the
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
litigants and petitions are filed. This apart, the High Court will not have the
benefit of complete scrutinisation of the original documents which all are to
be done by the original authority as well as by the appellate authority having
jurisdiction. This being the importance of an appellate remedy and the
legislative intention, this Court is of an opinion that the parties, at all
circumstances, are expected to exhaust the appellate remedy contemplated
under the statutes. Only on exceptional circumstances, where the proceedings
are issued by an incompetent authority having no jurisdiction, or an allegation
of malafides are raised, then alone the Writ Petitions are to be entertained and
certainly not in a routine manner. Even in case of raising an allegation of
malafides, the authority against whom such an allegation is raised must be
impleaded as party respondent in his personal capacity. All these aspects are
looked into by the High Court, in order to provide complete justice to the
litigants who all are having certain grievances against the actions of the
authorities.
4.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
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
warranting urgent relief to be granted. Mere violation of principles of natural
justice is insufficient to entertain a writ proceedings under Article 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.
5.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 hierarchy and the
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
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.
6.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.
7.In view of the facts and circumstances, the petitioner is at liberty to
prefer an appeal in the prescribed format and complying with the procedures
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
contemplated under the Act, before the jurisdictional appellate authority
within a period of four weeks from the date of receipt of a copy of this order.
In the event of filing any such appeal, the appellate authority shall condone
the delay, if any, entertain the appeal and dispose of the same on merits and
in accordance with law and by affording opportunity to the writ petitioner, as
expeditiously as possible.
8.The learned counsel for the petitioner made a submission that the
similar issues were considered by the High Court of Madras in
C.M.A.No.764 to 788 of 2015 and an order was passed on 30.04.2016. The
petitioner is at liberty to pursue the grounds as well as the legal principles
settled by this Court in the said judgment, in the grounds of appeal and during
the arguments before the appellate authority.
With these directions, all the Writ Petitions stand disposed of. No
costs. Consequently, connected Miscellaneous Petitions are closed.
26.07.2021
gsa
Index : Yes
Speaking Order: Yes
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
To
1.The Assistant Commissioner of Central Excise,
1, Vallalar Nagar, Manjakuppam,
Cuddalore 607 001.
2.The Chief General Manager (Finance)
Corporate Office, Neyveli Lignite Corporation,
Neyveli.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.12321, 12322 & 12324 of 2014
S.M.SUBRAMANIAM, J.
gsa
W.P.Nos.12321, 12322 & 12324 of 2014
26.07.2021
_____
https://www.mhc.tn.gov.in/judis/
