- (1.) RAJES Kumar, J. By means of the present writ petition under Article 226 of the Constitution of India, petitioner seeks the following relief. (i) to issue a writ of certiorari quashing the part of the final order No. 951/2000-B dated 12-5-2000 served on 18-7-2000 passed by the Customs, Excise and Gold (Control) Appellate Tribunal read with orders dated 2-9-1999 and 29-6-1998 passed by the Commissioner (Appeals) Central Excise, Ghaziabad and the Additional Commissioner, Central Excise, Noida respectively in respect of confirming the demand of duty. (ii) To issue any other suitable, writ order or direction in the nature of mandamus directing the respondents to treat the certifications dated 31-3-1997 and 5-9-1997 as valid certificates under Notification No. 108/95-CE dated 28-8-1995. (iii) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iv) To award the cost of the Writ petition to the petitioner.
(2.) BRIEF facts of the case giving rise to the present writ petition are that the petitioner is engaged in the manufacture of machines and parts thereof, structures reservoirs, tanks and similar containers etc. falling under Chapter 84 and 73 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "tariff Act") respectively. In terms of notification No. 108/95- CE dated 28-8-1995 all the goods falling under the Schedule to the Tariff Act are completely exempt from the Central Excise duty, if the same are supplied to the United Nations or an International Organization for their official use or to the project financed by the said United Nations or International Organization and approved by the Government of India, provided that before the clearance of the said goods, the manufacturer produces before the jurisdictional Assistant Commissioner of Central Excise, a certificate from the United Nations or an International Organization to this effect. The petitioner on the strength of the certificates dated 31-3- 1997 and 5-9-1997 issued by the project authority submitted before the jurisdictional Assistant Commissioner, cleared the goods during the month of September, 1997 to November, 1997 from its factory to M/s. Punjab Energy Development Agency on behalf of M/s. Triveni Engineering and Industries Limited without payment of duty claimed to be exempted under Notification No. 108/95-CE dated 28-8- 1995. The project being implemented was funded by the World Bank and duly approved by the Government of India. Assistant Commissioner, Central Excise, Division-II, NOIDA issued a show cause notice dated 21-1- 1998 to show cause why the Central Excise duty to the tune of Rs. 3,32,059/- be not recovered and why the penalty be not imposed under Section 11-AC of the Central Excise Act, 1944 on the aforesaid clearance. On the receipt of the reply, demand was confirmed on the ground that the requisite certificate provided under the Notification was not furnished. Being aggrieved by the adjudication order, petitioner filed appeal before the Commissioner (Appeals), which was dismissed, vide order dated 2-9- 1999. Petitioner further filed appeal before the Tribunal, which has been dismissed by the impugned order. Though, against the impugned order there was statutory remedy by way of reference under Section 35-H of the Act, still the petitioner filed the present writ petition on 11-10-2000. The writ petition came up for consideration before this Court on 12-10-2000. On 12-10-2000, the Court has passed the order "on the request of Sri A. P. Mathur, Advocate, list in ordinary course". Thereafter, on several occasions the case has been adjourned either on the illness slip or on the request of Sri A. P. Mathur. At no point of time, the Court has entertained the petition or asked the learned Standing Counsel to file counter-affidavit, though, counter-affidavit has been filed on behalf of the respondents. The petition has neither been entertained by the Court nor it has been admitted till date. On 1-12-2006, when the matter came up for consideration, Sri A. K. Rai, learned Standing Counsel submitted that writ petition is not maintainable inasmuch as, there was an alternative remedy by way of reference under Section 35-H of the Act and the petition is liable to be dismissed on the ground of alternative remedy. Learned Counsel for the petitioner submitted that the alternative remedy is not an absolute bar and the question involved in the present writ petition relates to the interpretation of the Notification No. 108/95-CE dated 28-8-1995. He further submitted that the limitation for filing the reference application has been expired and this Court has no power to condone the delay as held by the Division Bench of this Court in the case of Central Excise Reference Application No. (4) of 2001, Commissioner of Central Excise v. Salora Industrial Limited, decided on 13-9-2005. Thus, petitioner will become remediless and will suffer irreparable loss.
(3.) HAVING heard the learned Counsel for the parties, I have given my anxious consideration to the submission of the learned Counsel for the parties. Admittedly, against the order of the Tribunal, there was a remedy by way of reference under Section 35-H of the Act. Reference was to be filed within 180 days from the date of the receipt of the order. Instead of filing reference, petitioner has chosen to file present writ petition in the year, 2000. Writ Petition came up for consideration before this Court on 2-10- 2000. On that date instead of arguing the matter learned Counsel for the petitioner requested the Court to list the matter in ordinary course. Thereafter the matter came up for consideration before this Court on 10-9-2003 and thereafter the matter was listed number of times, but same was adjourned either on the illness slip of Sri A. P. Mathur, Advocate, or on his request. The petition has never been entertained or admitted at any stage. Thus, in case, if the petitioner has chosen to file writ petition instead of availing the statutory remedy by way of reference, it is the fault of the petitioner and the petitioner can only be held responsible. Learned Counsel for the petitioner is not able to show that the relief, which the petitioner is seeking in the writ petition, could not be sought in the reference proceeding.;