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2008 (7) TMI 174 - HC - CustomsTribunal imposed condition of pre-deposit of fifty percent of the differential duty while remanding the matter, for setting aside the OIO held that tribunal is not empowered to impose such a condition tribunal, a creation of statute, is to perform its function in accordance with power conferred on it held that liability of assessee to pay duty merged with ultimate order of setting aside of duty moreover, appellant cannot be thrown away on ground of alternate remedy
Issues Involved:
1. Maintainability of the writ petition under Article 226 of the Constitution when an alternative remedy under Section 130 of the Customs Act is available. 2. Legality of the order by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) imposing a pre-condition of fifty percent differential duty for setting aside the original order. Issue-Wise Detailed Analysis: 1. Maintainability of the Writ Petition: The first issue addressed whether the appellant could seek a remedy under Article 226 of the Constitution despite the availability of an alternative remedy under Section 130 of the Customs Act. The court noted that the Department did not argue the maintainability of the writ petition when it was admitted in 1998 or at the time of its final disposal in 2002. The counter affidavit filed by the Assistant Commissioner also did not highlight the availability of an alternative remedy as an impediment. The court emphasized that the writ jurisdiction under Article 226 is broad and cannot be restricted by statutory provisions. The restriction on entertaining a writ petition when an alternative remedy exists is self-imposed. The court cited several Supreme Court judgments, including S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, which held that the existence of an alternative remedy does not impinge upon the High Court's jurisdiction. The court further referenced the seven-judge bench decision in L. Chandra Kumar, which affirmed that the High Court's power under Article 226 is part of the Constitution's basic structure. Given that the issue was purely legal and involved the interpretation of statutory provisions, the court concluded that the appellant should not be denied relief on the ground of an alternative remedy. Thus, the first issue was resolved in favor of the appellant. 2. Legality of the Pre-Condition Imposed by CEGAT: The second issue examined whether the CEGAT's order imposing a pre-condition of fifty percent differential duty for setting aside the original order was in accordance with Section 129B of the Customs Act. Section 129B empowers the Tribunal to confirm, modify, annul, or refer the case back to the authority with directions for fresh adjudication. The Tribunal had concluded that the case required remanding for de novo consideration, particularly regarding the Chartered Engineer's certificate and the machine's manufacturing year. However, the Tribunal also imposed a pre-condition of depositing fifty percent of the differential duty for setting aside the original order. The court found that while the Tribunal could issue directions for de novo adjudication, it lacked the statutory authority to impose a pre-condition for setting aside the order. The Tribunal's power under Section 129B did not extend to imposing such conditions, which were deemed arbitrary and without statutory backing. The court highlighted the difference between issuing directions and imposing conditions, noting that the latter requires statutory authority. The court concluded that the Tribunal's imposition of the pre-condition was arbitrary and not supported by the statute. Consequently, the order of the learned single Judge was set aside, and the pre-condition imposed by the Tribunal was annulled. Conclusion: The court allowed the writ appeal, setting aside the Tribunal's order to the extent it imposed a pre-condition of fifty percent differential duty for setting aside the original order. The court emphasized that the Tribunal must act within the powers conferred by the statute and cannot impose conditions without statutory backing. The appellant was granted relief without any order as to costs.
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