19 October, 2011

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Sustainability of Writ Jurisdiction !!

The Article has been Submitted by Advocate Neeraj Gupta
We all Know when is Writ jurisdiction to be invoked when the fundamental rights are refused. The said jurisdiction may invoked against the state for enforcement of the fundamental rights. In any statute where there is no appeal provision against an aggrieved order then the writ jurisdiction can be invoked.


When there is alternative remedy of filing appeal is available the High Courts will not generally entertain writ petition unless there is some defect in procedure. Here some of the case laws are given in which the invoking of writ jurisdiction is rejected under various circumstances:

The Supreme Court in ‘Modern Industries V. SAIL’ – (2010) 5 SCC 44 held that when a remedy is available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 the High Court cannot be justified in entertaining the writ petition under Article 226.

In ‘Raj Kumar Shivhare V. Directorate of Enforcement’ – 2010 (SUPREME COURT) the Supreme Court while dealing with an alternative remedy availing under the FEMA held that the Act cannot be bypassed and the jurisdiction under Article 226 of the Constitution of India cannot be invoked.

In ‘United Bank of India V. Satyawati London’ – (2010) 8 SCC 110 Supreme Court dealt with SARFAESI Act and DRT Act. The Supreme Court in this case held that it is a matter of serious concern that despite repeated pronouncement of the Supreme Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 22 for passing orders which have serious adverse impact on the right of the banks and other
financial institutions to recover their dues.

The High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act. In ‘Sohams Foundations Engineering V. Union of India’ – 2011 -(KERALA HIGH COURT) the petitioner is engaged in the execution of works including construction and other civil works.

The petitioner imported excavators which were to be re-exported after use. The petitioner cleared the goods by filing a bill of entry for home consumption and remitted the duty at the rate as applicable as per Notification 27/2002. The goods were not re-exported within the time limit stipulated in notification.
Proceedings were initiated and the petitioner claimed the benefit of Notification No.27/2008 which was
rejected by the Department under Section 115 of the Customs Act. Against this order no appeal was filed by the petitioner. As such the order has attained the finality. The petitioner filed the writ petition challenging the above said order.

The High Court dismissed the petitioner since the Customs Act itself provided the remedy available to the litigant against an order. The time provided for such remedy has expired and the petitioner lost his right of appeal. Therefore by recourse of a proceeding under Article 226 of the Constitution of India, the petitioner cannot get a time barred cause of action resurrected and on that basis challenge at this distance of time.

The High Court observed that if the challenge is entertained that would enable litigants like the petitioner to revive the cause of action which is time barred and that clearly is impermissible. In ‘Apcotex Industries Limited V. Union of India’ – 2011 -- (BOMBAY HIGH COURT) the writ petition
was filed against CESTAT order upholding enhancement of value of imported goods. The dispute is as to whether the assessable value is to be determined on value at which high seas seller purchased from foreign supplier or on value at which petitioner purchased from high seas seller. The dispute being related to valuation and appeal lies in Supreme Court and not at High Court. The proper course is to file appeal before Supreme Court instead of filing the writ petition before high court. The petitioner having efficacious alternative remedy the writ petition was dismissed by the High Court.


In Areva T&D India Limited V. Asst. Commissioner of Central Excise, Chennai’ – 2011 - - (MADRAS HIGH COURT) the question considered by the High Court is whether the petitioner is entitled to have the benefit of an interim order before the High Court pending of his stay application as well as an application to waive pre deposit pending before the CESTAT.

In the above \case the petitioner filed an appeal before CESTAT against order-in-original. The petitioner also filed a stay petition. The CESTAT had not stayed the orders. The petitioner has also not paid the penalty. Therefore the department directed the petitioner to pay the duty and penalty. The petitioner in its reply to Department stated that since they had moved CESTAT and filed also stay applications, recovery proceedings initiated by the Department was not valid. The Department is also not to take coercive steps to recover the duty till the disposal of the stay application. The Department informed that the petitioner
that the above is applicable only in the first stage appeal. In normal time three months’ time will be given for filing an appeal against the order in appeal. Where the Commissioner decides the matter, maximum one month time will be given to comply with the order. The petitioner filed this writ petition against the said order. The petitioner put forth the following arguments before High Court:

The CESTAT must decide the application on merits and till such time, the recovery notice will be stayed;


In view of the circular dated 2.3.90 the Department should not take coercive machinery of recovery during pendency of stay petition before CEGAT; The Department put forth the following arguments:
The Board circular dated 25.5.2004 stated that not taking steps to recovery the duty during the pendency of stay petition before the Tribunal is available only to the first stage appeal and not to further appeals;
The circular of the Board dated 10.01.2007 stipulated that in the absence of any stay by CESTAT or the High Court, there is no impediment for the authorities to recover the amount;

When the stay application was listed for hearing the Department was ready to contest the case but the petitioner sought for a long adjournment which does not show any bona fide on their part.The High Court held that in all the fiscal matters, even if any recovery is made, that is always subject to the order to be passed by the appellate tribunal or by the High Court. Therefore, it cannot be said that any person can be prejudiced by the order of recovery. On the other hand persons like the petitioner who had filed defective appeal without pre deposit and waiting for pre deposit to be waived by taking recourse to the proviso to Section 35F and also not moving the stay application when the matters were listed and getting long adjournment is only to ruse to gain time and to defeat the amount being secured by the revenue. The
petitioner having moved the CESTAT must seek remedy only before the CESTAT as it has got power to grant an interim order.

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