Case: UNION OF INDIA (UOI) AND OTHERS Vs. MANGAL TEXTILE MILLS (I) P. LTD. AND OTHERS

2. The issue involved in both the appeals being identical, these are being disposed of by this common order.3. To appreciate the controversy, a brief reference to the background facts would be necessary. These are:Vide Notification No. 16/2001 -CE (NT) dated 30.04.2001 a new section E-XA, titled as Processed Textile Fabrics, was inserted in the Rules, containing Rules 96ZNA to 96ZND, providing for special procedure for payment of Excise Duty by an independent textile processor covered under the scheme, subject to the conditions and limitations laid therein. One of the conditions, enumerated in Rule 96ZNB, is that the original value of the investment in the plant and machinery installed in the factory of the independent textile processor of the said goods, as on 1st March, 2001 or on 1st May, 2001 whichever is higher, for an existing factory of the independent textile processor or on the date of making the application under Rule 96ZNA in the case of an independent textile processor commencing production for the first time in a new factory coming into existence after 1st May, 2001 shall not exceed three crore rupees, irrespective of whether such plant and machinery is in use or not, or is in working condition or not, and the independent textile processor shall declare the original value of investment in such plant and machinery installed in his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or Cost Accountant.4. Accordingly, in order to avail benefit of the said special procedure, the Assessee filed an application with the Commissioner in the prescribed form, declaring a total investment in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted.5. The Commissioner got the application verified through the jurisdictional Deputy Commissioner, who found that the original value of investment in plant and machinery as on 1st March, 2001 was Rs. 3,09,63,727/-. Certain other discrepancies were also detected in the valuation report. Finally, after affording an opportunity of hearing to the Assessee, the Commissioner came to the conclusion that: (i) since the Assessee was having two Open Air Stenters which were being used for heat setting and drying of fabrics, they are excluded from the purview of the Special Procedure in terms of Explanation-II to Rule 96ZNA and (ii) the original value of investment by the Assessee as on 1st March, 2001/1st May, 2001 was Rs. 3,09,63,727/-, which was in excess of the specified ceiling limit of three crore rupees. Consequently, Assessees application was rejected. Being aggrieved, the Assessee preferred a writ petition in the High Court under Article 226 of the Constitution, questioning the correctness of the order passed by the Commissioner.6. As stated above, the High Court has set aside the order passed by the Commissioner inter alia, on the ground that the Revenue, the Appellants herein, had failed to displace the opinion of Assessees Chartered Accountant by bringing on record opinion of another expert. Hence these appeals.

Reasoning:
8. We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution.9. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , which still holds the field, are quite apposite:The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.11. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact.