Omega Alloy Castings Pvt. Ltd. Vs. Commissioner (Appl.), C. Ex. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. deepak verma, j.1. with the consent of the patties, the petition is heard on merits. 2. the petitioner is aggrieved by an order passed by the respondent communicated to it by a telegram. it is mentioned in that telegram that vide order passed on 8-3-1995; wherein it has been found that the petitioner was not able to satisfy the respondents that it had a prima facie case and consequently the petitioner's prayer for stay was rejected. the said telegram has been filed as ann. p. 6 to the petition.3. counsel for the petitioner submits that an appeal, was filed under section 35 of the central excises and salt act, 1944. along with the said appeal an application under section 35f of the act was also filed praying therein that during the pendency of the appeal the modvat credit already availed of by the petitioner may not be recovered. it appears from the perusal of the telegram that the said application of the petitioner has been rejected. feeling aggrieved by the rejection of the application under section 35f of the act the petitioner has approached this court. 4. contention of the counsel for the respondents is that deposit of the money demanded by the respondents is condition precedent as per section 35f of the act. however, the same can be waived or dispensed with only if deposit of the money is going to cause undue hardship to such a person and a prima facie case has been made out.5. submission of the respondents is that in case the petitioner was not successful in establishing the prima facie case in its favour, nor it was able to make out a case of undue hardship, the consequence is to reject the stay application.6. be that as it may. from the perusal of the telegram it does not appear that the respondent had considered the two aspects in details :(1) whether the petitioner has been able to make out a prima facie case;and(2) whether the petitioner is going to suffer undue hardship or not.the respondent which is discharging judicial function, is expected to pass a reasoned and detailed order.7. the matter is, therefore, remanded back to the respondent for considering the petitioner's application afresh on merits and then to pass a detailed order about the prima facie case of the petitioner as also about undue hardship that the petitioner may suffer, if stay is riot granted. it is also expected that the respondents shall decide the appeal filed under section 35f of the act, as expeditiously as is possible.8. consequently the order communicated through telegram ann. p. 6, dated 8-9-1995 is set aside and the matter is remanded back to the respondent for deciding the matter afresh in the light of the observations made above. petition is disposed of finally with no order as to costs. c.c. on payment.