2018 (10) TMI 1159 - HC - Customs

Demand of pre-deposit - other parties got stay on similar issue - But appellant could not - Review of order - alternative remedy - conditional order of stay - dismissal order of restoration - Does an alternative remedy affect this Court s power of judicial review? - . Does the Ext.P4 sustain itself on its demanding pre-deposit? Does a writ petition lie against the Exts.P4 and P12 interlocutory orders, just because the petitioner could not treat them as giving rise to substantial questions of law? Held that - To maintain an appeal the appellant must satisfy the High Court that impugned order raises a substantial question of law. Then, the High Court formulates an issue, as it does under section 100 of CPC, and adjudicates. Now, the question is, can an interlocutory order, too, give rise to a substantial question of law? Alternatively, should we treat section 130 of the Act as not an efficacious alternative remedy vis- -vis an interim order the Appellate Tribunal passes? In M/s Punalur Paper Mill Ltd. V Commissioner of Central Excise and Customs 2014 (2) TMI 1250 - KERALA HIGH COURT , the Court considered writ petitions on interlocutory orders. The issue was the restoration of appeal. This Court, per learned Single Judges, has held that even as for restoring the appeals (that is, interlocutory orders), the petitioners could have the remedy of statutory appeal under section 130., but not the writ petition. What has Indus impugned? - Held that - Ext.P3 is the order-in-original. Indus questioned this order in appeal, CA No.C/21292 of 2014, before the CESTAT. Ext.P4 is the order the Tribunal passed on Indus s stay petition it directed Indus to deposit ten crore rupees as a precondition to have the appeal entertained. Indus could not comply with the direction; that is, depositing ten crore rupees in 12 weeks. So the Tribunal dismissed the appeal for non-compliance. Then, Indus filed a restoration petition before the Tribunal, which dismissed it, too, through the Ext.P12 order, dt.05.02.2018 - I reckon Indus made a common cause with eleven other courier agencies; they all seem to have a similar grievance. Of the 12 courier services, two approached this Court at the stage of show cause, filed writ petitions, and obtained a stay. Others approached the CESTAT. Eight had their cases remanded to the primary authority. One courier agency has still got its case pending before the Tribunal but seems to have suffered no conditional order of pre-deposit. It is said to enjoy a stay, too. Only Indus faced the problem of precondition. Equity may demand that Indus may have its case adjudicated on merits. But judicial discipline demands scrupulous compliance with the precedential dictate. Petition dismissed.

Summary

Issues Involved:
1. Whether an alternative remedy affects the High Court’s power of judicial review.
2. Whether the term “every order” under Section 130 of the Customs Act, 1962, includes interim orders.
3. Whether the Tribunal's order demanding a pre-deposit (Ext.P4) and subsequent dismissal of the appeal for non-compliance (Ext.P12) are sustainable.
4. Whether a writ petition is maintainable against interlocutory orders when an alternative statutory remedy exists.

Detailed Analysis:

1. Alternative Remedy and Judicial Review:
The judgment begins by addressing whether an alternative remedy affects the High Court’s power of judicial review. It is established that the restraint on judicial review is self-imposed and not absolute. The Court must be judicious and deferential to legislative wisdom. The judgment reiterates that the rule excluding writ jurisdiction on the grounds of an alternative remedy is discretionary, not compulsory. The petitioner’s counsel argued that alternative remedies do not bar the High Court’s jurisdiction under Article 226 of the Constitution, citing various precedents. The Court acknowledges that it has the jurisdiction to review judicial, quasi-judicial, or administrative decisions even when alternative remedies exist.

2. Interpretation of “Every Order” under Section 130:
The petitioner challenged the Tribunal's order demanding a pre-deposit (Ext.P4) and the subsequent dismissal of the appeal for non-compliance (Ext.P12). The Court examined whether the term “every order” under Section 130 of the Customs Act includes interim orders. It analyzed Section 130, which allows appeals to the High Court from every order passed by the Appellate Tribunal, provided it involves a substantial question of law. The judgment refers to precedents, including the Supreme Court’s decision in Raj Kumar Shivhare, which interpreted similar provisions to include all orders, including interlocutory ones. The Court concluded that interim orders fall within the scope of Section 130, thus providing an alternative statutory remedy.

3. Sustainability of Tribunal’s Orders (Ext.P4 and Ext.P12):
The petitioner contended that the Tribunal’s order demanding a pre-deposit was discriminatory and caused immense prejudice. The Court noted that the Tribunal had not insisted on pre-deposits in similar cases and had remanded them for fresh adjudication. However, the Court refrained from examining the merits of the Tribunal’s orders, focusing instead on the procedural aspect. The Court emphasized that it is not within its province to examine the correctness of the Tribunal’s course of action. The judgment concluded that the Tribunal’s orders (Ext.P4 and Ext.P12) are interlocutory and fall within the scope of Section 130, thus providing an alternative remedy.

4. Maintainability of Writ Petition Against Interlocutory Orders:
The petitioner argued that the writ petition is maintainable against the interlocutory orders (Ext.P4 and Ext.P12) as they do not give rise to substantial questions of law under Section 130. The Court examined numerous precedents on the issue of alternative remedy and reiterated that the existence of an alternative remedy does not oust the High Court’s jurisdiction under Article 226. However, the Court emphasized that judicial discipline demands compliance with precedential dictates. It concluded that the petitioner should approach the appellate Bench of the High Court to plead its case, as the interlocutory orders fall within the scope of Section 130, providing an alternative statutory remedy.

Conclusion:
The Court dismissed the writ petition, emphasizing that the petitioner should seek redress through the appellate Bench of the High Court under Section 130 of the Customs Act. The judgment underscores the importance of adhering to statutory remedies and judicial precedents while acknowledging the High Court’s broad jurisdiction under Article 226.