By TIOL News Service

CHENNAI, NOV 28, 2017: IN view of the Division Bench order of the High Court in the case of Tiruchitrambalam Projects Ltd. Vs. CESTAT, Chennai =  2016-TIOL-1096-HC-MAD- ST, that writ petitions cannot be posted before Single Judges and that they have to be posted only before the Division Benches dealing with tax cases, the Writ Petition came up for deciding the maintainability.

The point for consideration is, whether the Writ Petition is maintainable under Article 226 of the Constitution of India, without exhausting the alternative remedy, under Section 35G of the CEA, 1944.

The High Court adverted to the decisions in the cases of Union of India v. T.R.Verma AIR 1957 SC 882, C.A.Ibrahim v. ITO AIR 1961 SC 609, H.B. Gandhi v. M/s. Gopinath & sons, 1992 (Suppl) 2 SCC 312  and  Karnataka Chemical Industries v. Union of India 2000 (10) SCC 13, A.Venkatasubbiah Naidu v. S.Chellappan (2000) 7 SCC 695, Sheela Devi v. Jaspal Singh AIR 1999 SC 2859  and  Punjab National Bank v. D.C.Krishna 2001 (6) SCC 569, National Insurance Co. Ltd., v. Nicolletta Rohtagi (2002) 7 SCC 456, Sadhana Lodh v. National Insurance Co.Ltd., (2003) 3 Supreme Court Cases 524 and wherein it is held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedy, before resorting to writ jurisdiction.

It is further notedthat the issue raised by the petitioner, involves a dispute, in relation to classification and in such an eventuality, the appropriate remedy, would be an appeal, provided under the statute. Furthermore, although the petitioner contended that CESTAT, Madras, had passed two sets of orders on identical facts, the High Court viewed that that alone would not give rise to a cause to file a writ petition, when there is an effective and alternative remedy, by way of an appeal under Section 35G of the CEA, 1944.

Extracting the provisions of Section 35G of the FA and the decision in Union of India v. Guwahati Carbon Ltd.,- 2012-TIOL-119-SC-CUS, the High Court observed that lack of jurisdiction would be ground for invoking the extraordinary remedy, under Article 226 of the Constitution of India, but that was not the plea in the instant case.

Noting that the exceptions carved out in the case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement  -  2010-TIOL-29-SC-FEMA, namely - where there is a lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal has acted under a provision of law, which is declared ultra vires and in such cases, notwithstanding the existence of such a Tribunal, the High Court can exercise its jurisdiction to grant relief, are not applicable to the case on hand, the High Court concluded that the present Writ Petition filed under Article 226 of the Constitution of India is wholly misconceived and that the same is not maintainable.

The Writ Petition was rejected.

(See 2017-TIOL-2476-HC-MAD-CX)