IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NO.11555 OF 2014
DATED:16.4.2014 Between:
M/s. Hindustan Fly Ash Brick Industries, Proddatur, YSR District.
Petitioner And The Union of India represented by its Secretary, Ministry of Environment and Forests, New Delhi and others.
Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.11555 OF 2014
ORDER: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)
By this writ petition, the petitioner has challenged the order passed by the Deputy Commissioner (Audit) on behalf of the Commissioner of Customs and Central Excise, Tirupathi. According to us, by the impugned order, the aforesaid Authority has decided as follows:
“On being pointed out the assessee has stated that the goods were cleared at free of cost as per the guidelines issued by the Ministry of Environment. The contention of the assessee is not acceptable, as the fly ash is a duitable by product emerged out in the manufacturing process and marketable as per section 2(d) of Central Excise Act, 1944. As the goods in question are cleared for commercial purpose the fair value of Rs.250/- has to be adopted to the product.”
Therefore, a decision has been taken overruling the contention of the writ petitioner. Section 35-B(1)(a) of the Central Excise Act, 1944 (for short ‘the Act’) provides for an appeal to the Appellate Tribunal against such decision of the Central Excise Authority. We set out the relevant portion.
“Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such decision or order passed by the Commissioner of Central Excise as an adjudicating authority.”
Learned counsel for the petitioner says that since it is a question of violation of principles of natural justice, the writ petition is maintainable. Yes, we accept in principle that in case of violation of principles of natural justice, despite alternate remedy being available, the writ petition can be entertained. However, it is the discretion of the Writ Court. It is not a matter of right. We think that in a case of this nature, we should not exercise the discretion and in case there is violation of the principles of natural justice, it can be taken care of by the learned appellate Tribunal.
We, therefore, dismiss the writ petition. However, liberty is granted to the petitioner to approach the appellate Tribunal as mentioned in the aforesaid Act.
Consequently, the miscellaneous applications, if any, shall stand closed. No costs.
K.J. SENGUPTA, CJ 16th April, 2014 SANJAY KUMAR, J pnb