Sunil Kumar Borse vs. Central Excise

Held

The Court held that the writ petition was not maintainable. It relied on several Supreme Court judgments, including Hindustan Coca Cola Beverage Private Limited Vs. Union of India, Hameed Kunju vs. Nazim, Ansal Housing and Construction Ltd. Vs. State of Uttar Pradesh, and The Assistant Commissioner of State Tax and others Vs. M/s Commercial Steel Limited. These judgments emphasize that when a statute provides for a statutory appeal, that remedy should generally be availed. The Court found that the petitioner's argument regarding the denial of personal hearing was contrary to the record, as the impugned order indicated that opportunities for virtual hearings were provided on multiple dates, which the petitioner or their representative failed to attend. The Court also noted that no disputed question of law was involved, distinguishing the present case from situations where High Courts might interfere. Consequently, the Court did not entertain the writ petition but granted the petitioner liberty to avail the alternative remedy of appeal under Section 35F of the Central Excise Act, 1944, directing the appellate authority to decide the appeal on merits expeditiously.

Facts

The petitioner, Sunil Kumar Borse, filed a writ petition before the Madhya Pradesh High Court challenging an order-in-original dated 28.9.2022, passed by the Commissioner, CGST, Ujjain. This order confirmed demands proposed in a show cause notice and rejected the petitioner's responses. The High Court, at the outset, questioned the maintainability of the writ petition, citing the availability of an efficacious statutory alternative remedy of appeal under Section 35F of the Central Excise Act, 1944. The petitioner argued that the writ petition was maintainable because no opportunity for a personal hearing was granted, relying on the Supreme Court's judgment in Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum-Assessing Authority.

Key Issues

1. Whether the writ petition is maintainable under Article 226 of the Constitution of India when an efficacious statutory alternative remedy of appeal under Section 35F of the Central Excise Act, 1944 is available to the petitioner? (Question of law) Petitioner's contention: The writ petition is maintainable because the petitioner was not granted an opportunity for a personal hearing, citing Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum-Assessing Authority. The petitioner also argued that the High Court can interfere when disputed questions of law are involved. Revenue's contention: Not recorded. The Court's query focused on the availability of the statutory appeal remedy.