In the High Court of Judicature at Madras
Dated: 24/01/2005
CORAM
The Honourable Mr.Justice P.K.MISRA
Writ Petition No.1464 of 1998
The Commissioner of Customs
(Appeals) Madras
Customs House,
Chennai-1 .. Petitioner
-vs-
1. M/s Dowell Co., Ltd.,
Bangalore-560 001
2. Customs Excise & Gold(Control)
Appellate Tribunal, West Block-II,
R.K.Puram,
New Delhi-110 066 .. Respondents
Petition filed under Article 226 of the Constitution of India
for the issue of a writ of Certiorari as stated therein.
For petitioner : Mr. S.Udayakumar
For 1st respondent : Mr. R.Sathish Parasaran
For 2nd respondent : M/s Ramasubramanian
Associates
:O R D E R
Heard learned counsel appearing for the parties.
2. The prayer in this writ petition is to issue a writ of
Certiorari, call for the records of the Tribunal, the second respondent herein
in C/2292/91-92 and to quash the order dated 29.7.1997 made thereon.
3. The writ petition is filed against the granting of
exemption by the first respondent on the ground that the automatic bottle
labeling machine imported for food product and therefore, exemption was
permissible.
4. Learned counsel for the petitioner has placed reliance on
the decision of the Supreme Court in Civil Appeal No.27667 of 2000 dated
11.10.2001 wherein the Supreme Court has observed that Beer is not a food
product and, therefore, no exem e granted in respect of import of various
goods, including the automatic bottle lebeling machine. The aforesaid
decision is squarely applicable to facts of the present case.
5. Learned counsel appearing for the first respondent however
submitted that since alternative remedy was available for the petitioner, the
petitioner should not have filed the writ petition.
6. Even though such a submission would be normally accepted,
having regard to the facts and circumstances of the present case, the said
submission cannot be accepted, since the writ petition is of the year 1998 and
the matter has remained pending for more than six years in this Court and it
would be inappropriate to direct the petitioner to approach the alternative
forum.
7. More over, since the issues involved in this writ petition
are directly covered by the decision of the Supreme Court cited supra, there
is no necessity to drive the petitioner to exhaust the alternative remedy.
8. For the aforesaid reasons and following the decision of
the Supreme Court referred to above, the order passed by the second respondent
is quashed and the writ petition is allowed. There is no order as to costs.
Index : Yes
Internet: Yes
kvsg
To
1. M/s Dewell Co., Ltd.,
Bangalore-560 001
2. Customs Excise & Gold(Control)
Appellate Tribunal, West Block-II,
R.K.Puram,
New Delhi-110 066.
