Brother Impex & ANR. v. Union Of India & ANR.

$~31 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 592/2018 BROTHER IMPEX & ANR. .... Petitioners Through Mr. Alok Yadav, Advocate.

Versus

UNION OF INDIA & ANR. ..... Respondents Through Mr. Pratushi Miglani, Advocate for R-1 UOI.

Mr. Satish Kumar, Advocate for R-2.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE CHANDER SHEKHAR

O R D E R

% 22.01.2018 The impugned order-in-original dated 7th September, 2017 passed by the Additional Director General (Adjudication), Directorate of Revenue Intelligence is appealable before the Central Excise and Service Tax Appellate Tribunal.

2.

The primary contention raised by the petitioner challenging the orderin-original in the writ petition under Article 226 of the Constitution of India is predicated on decision of the Delhi High Court dated 3rd May, 2016 in W.P. (C) No.441/2013, Mangli Impex Ltd. Vs. Union of India, which decision, it is accepted, has been stayed by the Supreme Court. The respondents' submit that the decision in Mangli Impex Ltd.(supra) would not be applicable for the show cause notices and the order-in-original have been passed after the statutory amendment made in 2011.

3.

The petitioner has made allegations regarding violation of principles of natural justice as the proprietor of the petitioner company was unwell, yet adjournment was refused. On a Court question, counsel for the petitioner has stated that the show cause notices subject matters of the order-in-original were issued in March, 2015, February, 2016 and August, 2016. Another allegation relates to furnishing of the relied upon documents, cross examination of some officers etc. As per the writ petition, the petitioner has submitted an interim reply in February, 2017 (there is some confusion as the petitioner has not able to point out the exact date). Counsel for the respondents, who appears on advance notice, states that these aspects can be examined by the appellate forum as challenge to violation of principle of natural justice is factual. Question of prejudice would arise even if the allegations were correct.

5.

In the facts we are not inclined to exercise our discretion and entertain the present writ petition in view of the equally efficacious statutory appellate remedy. Appellate forum can examine both questions of facts and law and will be the appropriate and correct forum to examine and consider the validity of the impugned order.

6.

In view of the aforesaid position, we are not inclined to issue notice and leave it open to the petitioner to take recourse to alternative remedy provided by the statute. We have not any observations and commented on merits.

7.

Counsel for the petitioner, at this stage, submits that they would be filling an application for condonation of delay, if required, before Tribunal. If any such application is filed, the same would be considered in accordance

with law.

SANJIV KHANNA, J.

CHANDER SHEKHAR, J.

JANUARY 22, 2018 MR/NA