Surya Agroils Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
held: letters patent appeal - writ against show cause notice--the single judge rightly directed the petitioner to send a reply to the scn to the appropriate authority within a month and pursue appropriate remedies available under the law. the view held by the supreme court is that when an scn has been issued under any statute or act, then, for redressal of the grievance, the aggrieved party should approach the forum prescribed under the said statute or act and a petition under article 226 of the constitution shall not be maintainable. time for reply to scn extended till 30.5.1995.;writ petition dismissed in liminite. - 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)]. - 1. this letters patent appeal under clause 10 of the letters patent act has been filed by the unsuccessful petitioner who had filed w. the said pasta foods are packed in bulk, in loose as well as in unit containers of varying weights. 10. the contention of the learned counsel for the appellant that the extended period of limitation as prescribed under section 11a of the central excises and salt act shall not be applicable to the facts of the present case, can also be well agitated before the proper forum.orderd. verma, j.1. this letters patent appeal under clause 10 of the letters patent act has been filed by the unsuccessful petitioner who had filed w.p. no. 1239/93 challenging the show cause notice issued to the appellant.2. the learned single judge heard the matter on 15.3.1995 and disposed of the petition with the observations which are reflected in para 11 of the impugned order. it is reproduced here-in-below:11. in the circumstances, i dispose of this petition with the directions as under:(a) the aforesaid show cause/notice (ann. p. 8) is not quashed but the petitioner is granted liberty to show cause and submit reply to the appropriate authority within a period of one month from today. the petitioner shall be free to take all pleas and objections as are available under the law.(b) the appropriate authority shall consider the cause and reply and take appropriate decision as early as possible, in conformity with law, under intimation to the petitioner, by reasoned order.(c) if the order turns out to be adverse to the petitioner, the petitioner shall be free to pursue appropriate remedy in that behalf.the appellant feeling aggrieved by the said order has approached this court by way of filing l.p.a.3. few facts necessary to understand the controversy of the matter are mentioned herein below. the appellant, which is a duly registered company under the provisions of the companies act, 1956, is engaged in the business of manufacturing pasta foods. the said pasta foods are packed in bulk, in loose as well as in unit containers of varying weights. the excise duty payable on both types of the packing is different. the respondents on coming to know that the appellant was engaged in clandestine removal of pasta foods, put up in unit containers falling under sub-heading 1902.10 under the guise of pasta foods as bulk in loose falling under sub-heading 1902.90 with intention to avoid the payment of central excise duty, issued show cause notice to it. the appellant's factory was accordingly inspected by the officer of the respondents and thereafter they have served a show cause notice to it on 31.3.1993 calling upon the appellant to file its appropriate reply and to show cause as to why the amount of excise duty be not recovered and penalty be not imposed on it. the appellant instead of filing an appropriate reply taking all objections available to it, straight way, approached the high court under articles 226/227 of the constitution, challenging the said show cause notice.4. as mentioned above the learned single judge after hearing both the counsels of the parties disposed of the petition with the observations which have already been reproduced above.5. shri mathur learned senior counsel appearing for the appellant has strenuously argued before us and submitted that the said show cause notice dated 31.3.1993 is wholly without jurisdiction and in absence of jurisdiction, the appellant had no other alternative remedy available to it but to approach the high court under the provisions of articles 226/227 of the constitution.6. in furtherance of his contention, shri mathur has relied on decisions reported in hindustan electro graphites ltd. v. union of india. 1990 (50), jayant vitamins v. union of india and ors. : 1991(53)elt278(mp) and universal cables ltd. v. union of india and ors. : 1978(2)elt494(ker) to show that even show cause notices can be challenged in a writ jurisdiction provided the said show cause notice is without jurisdiction and lacks complete absence of jurisdiction.7. there does not appear to be any dispute with regard to the ratio decided in the aforesaid cases. however, the recent view of the apex court is that if a show cause notice has been issued under any statute or act, then for redressal of the grievances the aggrieved party should approach the form prescribed under the said statute or act and a petition under article 226 of the constitution shall not be maintainable. for this we rely on the decisions of maheshwari woollen mills ltd. : air1993sc1251 , as also on state of u.p. v. labhchand : (1993)iillj724sc .8. the recent judgment of our high court which highlights the similar legal position is reported in birla jute and industries ltd. v. union of india and an- other 1993 m.p.l.j. 924. in this case the petitioner had also approached the high court invoking the jurisdiction under article 226/227 of the constitution to challenge the show cause notice issued to it. the high court while dismissing the petition directed the petitioner to approach the collector central excise to contest the matter on merits.9. keeping all these decisions in view, in our opinion, the learned single judge has rightly disposed of the petition with the observations as mentioned above.10. the contention of the learned counsel for the appellant that the extended period of limitation as prescribed under section 11a of the central excises and salt act shall not be applicable to the facts of the present case, can also be well agitated before the proper forum.11. thus, we are not inclined to admit this appeal and dismiss the same. however, the period of filing reply to the show cause notice as extended by the learned single judge by one month from 15.3.1995 has also expired and therefore, we extend the said period upto 30th may, 1995 and the appellant may take necessary steps of filing reply to the show cause notice and contest the matter on merit, if it so desires.thus the appeal is dismissed in liminie without notice to the other side.

Judgment:
ORDER

D. Verma, J.

1. This letters patent appeal under Clause 10 of the Letters Patent Act has been filed by the unsuccessful petitioner who had filed W.P. No. 1239/93 challenging the show cause notice issued to the appellant.

2. The learned Single Judge heard the matter on 15.3.1995 and disposed of the petition with the observations which are reflected in para 11 of the impugned order. It is reproduced here-in-below:

11. In the circumstances, I dispose of this petition with the directions as under:

(a) The aforesaid show cause/notice (Ann. P. 8) is not quashed but the petitioner is granted liberty to show cause and submit reply to the appropriate Authority within a period of one month from today. The petitioner shall be free to take all pleas and objections as are available under the law.

(b) The Appropriate authority shall consider the cause and reply and take appropriate decision as early as possible, in conformity with law, under intimation to the petitioner, by reasoned order.

(c) If the order turns out to be adverse to the petitioner, the petitioner shall be free to pursue appropriate remedy in that behalf.

The appellant feeling aggrieved by the said order has approached this court by way of filing L.P.A.

3. Few facts necessary to understand the controversy of the matter are mentioned herein below. The appellant, which is a duly registered Company under the provisions of the Companies Act, 1956, is engaged in the business of manufacturing Pasta foods. The said Pasta foods are packed in bulk, in loose as well as in unit containers of varying weights. The excise duty payable on both types of the packing is different. The respondents on coming to know that the appellant was engaged in clandestine removal of Pasta foods, put up in unit containers falling under sub-heading 1902.10 under the guise of Pasta foods as bulk in loose falling under sub-heading 1902.90 with intention to avoid the payment of Central Excise duty, issued show cause notice to it. The appellant's factory was accordingly inspected by the officer of the respondents and thereafter they have served a show cause notice to it on 31.3.1993 calling upon the appellant to file its appropriate reply and to show cause as to why the amount of excise duty be not recovered and penalty be not imposed on it. The appellant instead of filing an appropriate reply taking all objections available to it, straight way, approached the High Court under Articles 226/227 of the Constitution, challenging the said show cause notice.

4. As mentioned above the learned Single Judge after hearing both the counsels of the parties disposed of the petition with the observations which have already been reproduced above.

5. Shri Mathur learned senior counsel appearing for the appellant has strenuously argued before us and submitted that the said show cause notice dated 31.3.1993 is wholly without jurisdiction and in absence of jurisdiction, the appellant had no other alternative remedy available to it but to approach the High Court under the provisions of Articles 226/227 of the Constitution.

6. In furtherance of his contention, Shri Mathur has relied on decisions reported in Hindustan Electro Graphites Ltd. v. Union of India. 1990 (50), Jayant Vitamins v. Union of India and Ors. : 1991(53)ELT278(MP) and Universal Cables Ltd. v. Union of India and Ors. : 1978(2)ELT494(Ker) to show that even show cause notices can be challenged in a writ jurisdiction provided the said show cause notice is without jurisdiction and lacks complete absence of jurisdiction.

7. There does not appear to be any dispute with regard to the ratio decided in the aforesaid cases. However, the recent view of the Apex Court is that if a show cause notice has been issued under any statute or Act, then for redressal of the grievances the aggrieved party should approach the form prescribed under the said statute or Act and a petition under Article 226 of the Constitution shall not be maintainable. For this we rely on the decisions of Maheshwari Woollen Mills Ltd. : AIR1993SC1251 , as also on State of U.P. v. Labhchand : (1993)IILLJ724SC .

8. The recent judgment of our High Court which highlights the similar legal position is reported in Birla Jute and Industries Ltd. v. Union of India and an- other 1993 M.P.L.J. 924. In this case the petitioner had also approached the High Court invoking the jurisdiction under Article 226/227 of the Constitution to challenge the show cause notice issued to it. The High Court while dismissing the petition directed the petitioner to approach the Collector Central Excise to contest the matter on merits.

9. Keeping all these decisions in view, in our opinion, the learned Single Judge has rightly disposed of the petition with the observations as mentioned above.

10. The contention of the learned Counsel for the appellant that the extended period of limitation as prescribed under Section 11A of the Central Excises and Salt Act shall not be applicable to the facts of the present case, can also be well agitated before the proper forum.

11. Thus, we are not inclined to admit this appeal and dismiss the same. However, the period of filing reply to the show cause notice as extended by the learned Single Judge by one month from 15.3.1995 has also expired and therefore, we extend the said period upto 30th May, 1995 and the appellant may take necessary steps of filing reply to the show cause notice and contest the matter on merit, if it so desires.

Thus the appeal is dismissed in liminie without notice to the other side.