THE HON'BLE SRI JUSTICE B. PRAKASH RAO AND THE HON'BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.4685 of 2008 ORDER: (Per Hon’ble CYS, J) 1 Aggrieved by the action of the Assistant Commissioner Customs & Central Excise (2nd respondent) in issuing a notice of attachment of flat No.103, Sandhya Apartments, Beside Model House, Panjagutta, Hyderabad {hereinafter referred to as the flat} (allegedly belonging to the petitioner), under Rules 9 and 10 of Customs (Attachment of Property of Defaulters For Recovery of Government Dues) Rules 1995 (the Rules), on the basis of an undated letter which was signed on 30.11.2007 and which is addressed to the Commissioner of Customs and Central Excise, making a request to him to realize an amount of Rs.4,36,548/- due from M/s. Divya Enterprises (belonging to the wife of the petitioner) by way of duty, penalty and interest @ 20% on duty amount of Rs.2,25,774/- under the Central Excise Act, 1944 (the Act) petitioner filed this writ petition. 2 The case of the petitioner is that he became the absolute owner of the flat, which was purchased by him along with his friend K. Venkata Rao under a registered sale deed dated 30.06.2004 from Smt. J.Aruna W/o Sri J.Vijay Bhaskar Reddy, after his co-owner K. Venkata Rao executed a release deed in respect of his share in his favour on 27.11.2007 and got it registered. When his wife K.Sarojini, who was the proprietress of M/s. Divya Enterprises, a small-scale industrial unit dealing in natural mineral clay and other articles exempted under the Central Excise Act, was assessed to excise duty on the turnover of her business, she challenged the said assessment by way of an appeal before the Commissioner of Appeals who dismissed the same. So she preferred an appeal against that order of the Commissioner of Appeals to CESTAT i.e. Customs, Excise and Service Tax Appellate Tribunal. During the pendency of the said appeal before the CESTAT, his wife passed away and so he came on record as her legal representative and prosecuted the said appeal, which was dismissed by the CESTAT. Questioning the order of CESTAT dismissing the said appeal a further appeal i.e. CEA No.145 of 2006 is filed in this Court, which is still pending. In the meanwhile, on the basis of an undated order of the 2nd respondent, which was signed by him on 30.10.2007, and addressed to the 3rd respondent, requesting attachment of the flat for realizing the amount allegedly due from M/s. Divya Enterprises, in accordance with the provisions of Section 142(1) (C) (ii) of the Customs Act, 1962 and the Rules which are made applicable to the matters under Central Excise Act by way of notification No.68/63- CE (NT) dated 04.05.1963 as amended, the flat, which in fact belongs to him, is attached. As respondents have no right to attach his personal property for the amounts due from his wife, or M/s. Divya Enterprises belonging to her, and as the respondents are trying to dispossess him from the flat, which is his personal property, for the amounts which are not due from him, he is questioning the action of the respondents in attaching his property i.e the flat which is contrary to the provisions of Article 300-A of the Constitution of India by way of this petition, as no other remedy is available to him. 3 The contention of the learned counsel for the petitioner is that inasmuch as the personal property of the petitioner cannot be attached or proceeded against for the amounts allegedly due from his wife, or the concern owned by her, the action of the respondents in passing orders of attachment of the flat, which actually belongs to the petitioner and over which his wife has no right or interest, is highly irregular and is contrary to the provisions of Article 300-A of the Constitution of India and as the petitioner has no other remedy this petition is maintainable. The contention of the learned Assistant Solicitor General is that since the petitioner has an effective and alternate remedy of appeal this writ petition is not maintainable. 4 Section 35 of the Act reads: “Any person aggrieved by any decision or order passed under this Act by Central Excise officer lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner of appeals within sixty days from the date of communication to him of such decision or order” …….. (Other matter omitted as not relevant) 5 One of the orders impugned in this case is passed by the 2nd respondent i.e. Assistant Commissioner Customs & Central Excise, and another order impugned is passed by the 3rd respondent i.e. Assistant Commissioner (ARC) Customs & Central Excise. As the orders passed by respondents 2 and 3 who, admittedly, are officers lower in rank than the Commissioner of Central Excise, fall within the sweep of the expression “any decision or order passed under this Act by Central Excise Officer lower in rank than Commissioner of Central Excise” used in Section 35 of the Act, petitioner has a right of appeal to the Commissioner of Excise (Appeals) against the orders passed by respondents 2 and 3. In those appeal(s) he can raise all the contentions now raised in this petition and the appellate authority would give his reasoned decision on the contentions raised by the petitioner. It is well known that when an effective and efficacious remedy of appeal is available this Court would not normally entertain a petition under Article 226 of the Constitution. For that reason and as no reasons are mentioned in the affidavit of the petitioner for his approaching this court directly without availing the statutory remedy of appeal available to him, we do not wish to entertain this writ petition challenging the orders of respondents 2 and 3. 6 The petitioner obviously with a view to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, by by-passing the effective alternate remedy of appeal available to him, must have pitched upon a plea that the action of the respondents in attaching his property is contrary to the Article 300-A of the Constitution, though that article has no application to the facts of this case, because, excise arrears can be recovered by attachment or sale of the property of defaulters. Question whether the flat or other property allegedly belonging to the petitioner can be attached for the amounts due from his wife or M/s. Divya Enterprises is a question which can be gone into and decided by the appellate authority in an appeal, if preferred by the petitioner, questioning the orders passed by the respondents 2 and 3. 7 Therefore, granting liberty to the petitioner to prefer an appeal against the orders impugned, the writ petition is dismissed. No order as to costs. ----------------------- B.Prakash Rao, J. ------------------------- C.Y.Somayajulu, J. Dt:02-05-2008 Kvsn