1967 (7) TMI 61 - SC - Central Excise

Whether the provisions of Section 129 of the Customs Act can be said to be provisions relating to procedure relating to appeals within Section 12 of the Excise Act? Held that - Section 35 of the Excise Act gave a right of appeal, but Section 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within Section 12 of the Excise Act. Appeal dismissed.

Summary

Issues:
1. Maintainability of petitions under Article 226 without availing revision remedy under Section 36 of the Excise Act.
2. Whether invoking Section 129 of the Customs Act bars challenging the notification.
3. Validity of the notification applying Section 129 of the Customs Act.

Analysis:

1. The first issue raised was the maintainability of petitions under Article 226 without availing the revision remedy under Section 36 of the Excise Act. The court dismissed this argument, stating that the existence of a revision remedy does not bar the High Court's jurisdiction under Article 226. The petitioner's claim that the Collector lacked jurisdiction due to the impugned notification made filing revisions unnecessary.

2. The second issue questioned whether invoking Section 129 of the Customs Act precluded challenging the notification. The court rejected this argument, emphasizing that the petitions raised jurisdictional questions. It was noted that if the petitioner had not sought dispensation of duty deposit, the respondents might have argued against the maintainability of Article 226 petitions.

3. The third issue pertained to the validity of the notification applying Section 129 of the Customs Act. The court examined the relevant statutory provisions, including Section 12 of the Excise Act and the impugned notification. It was observed that Section 129 of the Customs Act mandates duty or penalty deposit pending appeal, potentially hindering the right to appeal. Citing precedent, the court concluded that Section 129 restricts the substantive right of appeal and does not constitute "procedure relating to appeals" under Section 12 of the Excise Act.

In conclusion, the court dismissed the appeals, affirming the High Court's decision to quash the orders and directing the Collector to hear the appeals by the petitioner. The judgment highlighted the limitations imposed by Section 129 of the Customs Act on the right to appeal, emphasizing the distinction between substantive appeal rights and procedural requirements.