(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Cause is similar in all these petitions. Brief facts for the limited purpose of this judgement may be noticed from Special Civil Application No.13295 of 2004. In the said petition, the petitioners have challenged an order dated 25.5.2004 passed by the Customs, Excise & Service Tax Appellate Tribunal (“the CESTAT” for short). By the said order, the CESTAT was pleased to hold that Cold Rolled Strips are the result of a process of manufacture undertaken by the petitioners.
2. At the outset, we had posed a question of maintainability of the writ petition with the counsel. He fairly conceded that whether the process under by the petitioners amounts to manufacture would involve determination of a question relating to the rate of duty of excise and that, therefore, in terms of the provisions contained in section 35L of the Central Excise Act, 1944, the appeal against such an order of the Tribunal would lie only to the Supreme Court and not before this Court. Even otherwise, we had before us a decision of Division Bench of this Court in case of Commissioner of Central Excise & Customs v. Swiss Glass Coat Equipments Ltd. reported in 2011 (273) ELT 364 (Guj.) taking a similar view.
3. We are of the opinion that when against the impugned judgement of the Tribunal, appeal under the Central Excise Act is exclusively available before the Apex Court, it would not be open for us to entertain the challenge against such a judgement of the Tribunal in a writ petition. If the appeal was otherwise competent before the High Court, perhaps it may be open for an assessee to contend that in given set of facts and circumstances, the Court may entertain a writ petition, even ignoring availability of an alternative remedy. However, when the appeal provided under the statute against the judgement of the Tribunal lies before the Apex Court, to the exclusion of this Court, it would not be open for us to entertain a writ petition and bypass such appellate remedy. This is precisely the view expressed by the Apex Court in the decision in case of Union of India v. Guwahati Carbon Ltd. reported in 2012 (278) ELT 26 (SC). In the said decision, referring to the provisions contained in section 35G of the Central Excise Act and section 35L of the Act, the Apex Court held and observed as under :
“17. Having said so, we have gone through the orders passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/transportation charges and the insurance charges from the assessable value of the commodity in question. Since what was done by the Tribunal is the determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court under section 35L of the Central Excise Act, 1944.
18. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first, the order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee.”
4. In view of this position, we dismiss these petitions. Rule discharged. Interim relief vacated.
[AKIL KURESHI, J.] [HARSHA DEVANI, J.] parmar*