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TMI Blog2014 (12) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction can certainly be invoked even if there is an existence of an alternative remedy by way of an appeal if on the face of it, the order appears to have been passed de hors the statute. The power of an appeal before the Appellate Tribunal could be traced from Section 129A of the Customs Act, 1962 which does not contain any provision either to be proceeded by a deposit of the duty and the penalty imposed by the adjudicating authority as a condition precedent or in default of such deposit, the appeal would be liable to be dismissed. In absence of the specific provisions, the authorities cannot innovate the mechanism for dismissal thereof at any stage of the said appeal. The appellate tribunal could very well proceed to decide the appeal and simultaneously therewith, the adjudicating authority can take recourse to the provision of the statute for recovery thereof. The statutory authorities are bound to act within the precincts of the statute and cannot travel beyond it. Power of tribunal to dismiss the appeal for non-deposit of pre-deposit amount as ordered - Held that:- By imposing the condition that if the deposit is not made, the appeal would attract dismissal, such cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms either before or after the appointed date. The said provision put a fetter in deciding an appeal against an order passed by the Commissioners (Appeals) if it relates to any goods imported or exported at baggage or the goods loaded in conveyance for importation into India but not unloaded at the place of destination in India either full or the short quantity or the payment of drawback. Section 130 further provides for an appeal before the High Court from every order passed in an appeal by the Appellate Tribunal on or after the 1st day of July, 2013 if the High Court is satisfied that the case involved a substantial question of law. Every order does not include an order relating, among other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment as those orders are amenable to be challenged directly before the Supreme Court under Section 130E(b) of the said Act. Section 129E of the said Act envisaged the deposit of a duty and interest demanded in respect of the goods in any appeal preferred under the said chapter. The first proviso thereto bestowed the power upon the Appellate Tribunal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be challenged in an appeal under Section 130 of the said Act but held that the appeal to the High Court is not automatic but the conditional one that it involves a substantial question of law in these words : An appeal to the High Court is, therefore, not automatic. The condition precedent for entertaining an appeal is the satisfaction of the High Court of the case involving a substantial question of law. An order under section 129E of the Customs Act, 1962, dispensing with disputed duty and/or penalty either fully, or in part, or refusing to do so is generally based on assessment of facts and may or may not involve any question of law, far less, any substantial question of law. An appeal may lie to the High Court from an order of the Tribunal waiving pre-deposit of the disputed duty and/or penalty either wholly or in part or refusing to waive pre-deposit, if the order is based on a finding which gives rise to a substantial question of law. ******** ********* An order of CESTAT dismissing an appeal under Section 129E of the Customs Act, 1962 whether on the ground of non deposit of the disputed duty or penalty or on the ground of the same being barred by limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be arrived from the above noted decision is that the order passed under Section 129E of the Act is certainly amenable to an appeal under Section 130 of the said Act provided it involves a substantial question of law. It leads to another question whether what could be said to be a substantial question of law. The expression question of law is qualified with the word substantial which admits no ambiguity that mere existence of a question of law does not make the appeal valid unless it is substantial. One can lend support from a judgment of the Supreme Court in case of Santosh Hazari v. Purushottam Tiwari reported in 2001 (251) ITR 84 wherein it is held that to be substantial, the question of law must be debatable and have a material bearing on the decision of the case, in so far as, the rights of the parties are concerned in these words : The phrase substantial question of law , as occurring in the amended section 100 is not defined in the Code. The word substantial, as qualifying question of law , means - of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradiction with technical, of no substance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. In Deputy Commissioner, Hardoi v. Rama Krishna Narain, AIR 1953 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) section 110 of the Code. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial , a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involved in the case , there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.). 11. In a most recent judgment delivered by the Supreme Court in case of Union of India v. Ibrahim Uddin reported in (2012) 8 SCC 148, it is held that to be substantial, the question of law must be debatable and must have a material bearing on the decision of the case and even the facts can be gone into provided the findings thereupon is vitiated by non-consideration of the relevant evidence or an apparent erroneous approached to the matter in these words : 66. In Oriental Investment Co. Ltd. v. CIT this Court considered a large number of its earlier judgments, including Sree Meenakshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he person has the alternative efficacious remedy provided therefor. It is a rule of discretion rather than the rule of compulsion. In case of State of U.P. v. Md. Nooh reported in AIR 1958 SC 86, the Supreme Court held that exercising the jurisdiction under Article 226 is not a abject rule but somewhat flexible and primarily a matter of discretion as opposed to the rule of law in these words : If an inferior Court of Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court s sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of Court or Tribunal of first instance even if an appeal to another inferior Court or Tribunal was available . 15. In a subsequent judgment rendered in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1, the Apex Court held that the High Court can entertain the writ petition in spite of the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and was affirmed and followed in the following words : The passages in the judgments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total violation of the principles of natural justice. 17. The Bench further took note of the various other judgments of the Court including the one rendered in case of Whirlpool Corporation (supra) and held that when the statute provides a complete mode to seek redress to the grievance, the writ court should have refused to exercise the discretion unless the remedy provided under the statute is exhausted first in these words : 8. Mr. Iqbal Chagla, Senior Counsel appearing for the appellant, has contended that a notice under Section 56(4) can be issued only by the Tribunal , which has been defined in Section 2(l)(x), which means the Registrar or the High Court before which the proceeding concerned is pending. Mr Chagla has contended that it is either the Registrar or the High Court, which can issue a notice under Section 56(4), but out of the two, only that authority can issue the notice before which the proceeding concerned is pending. It is further contended that since a passing-off suit was already pending in the Delhi High Court, where the appellant had also moved an application for amendment of the plaint so as to include the relief of infringement of its trade mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becoming the victim of vertigo of this whirlpool at the Bar, we have, for the time being, dispassionately assumed the role of a grammarian, to consider the science of the English language from the point of view of inflexion, punctuation and, of course, the whole syntax, as the argument of the respondents counsel is based, almost wholly, on the importance of comma and the pronouns, which or whom , occurring in that definition keeping, at the same time, in our mind, the principle grammatica falsa non vitiat chartam (false grammar does not vitiate a deed) and the question whether this would also apply to statutory interpretation. But before we do it, we will first dispose of the preliminary objection relating to maintainability of the writ petition as filed in the High Court, allegedly, being premature and having been brought without first exhausting the alternative remedies under the Act. 13. Learned counsel for the appellant has contended that since suo motu action under Section 56(4) could be taken only by the High Court and not by the Registrar, the notice issued to the appellant was wholly without jurisdiction and, therefore, a writ petition even at that stage was mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. The alternative remedy of appeal is subject to the satisfaction of the High Court that not only a question of law but a substantial question of law is involved. Where the alternative remedy is not definite, but subject to the satisfaction of the High Court of involvement of a substantial question of law, a writ application should, in my view, not be rejected on the sole ground of existence of an alternative remedy of appeal. Moreover, it is doubtful whether any substantial question of law is involved in the instant case. 19. The same Hon ble Judge in case of Kamalal Metachem (supra) in dealing a matter relating to the Customs Act held that an appeal may lie to the High Court from an order of the Tribunal allowing and/or refusing to allow the waiver of the pre-deposit condition if the finding so arrived gives right to a substantial question of law in these words : An order of CESTAT dismissing an appeal under Section 129E of the Customs Act, 1962 whether on the ground of non deposit of the disputed duty or penalty or on the ground of the same being barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 14(1) of the Customs Act, 1962, the appeal is filed before the Tribunal. Various pleas are raised by the assessee in the said appeal challenging the order passed by the adjudicating authority in imposing the penalty. The petitioner took out an application for waiver of the deposit of the penalty before the Appellate Tribunal. The Appellate Tribunal disposed of the said application on 4-10-2012 by way of 90% of the penalty and directed the payment of 10% of the penalty within a stipulated period. The Tribunal further observed that if such penalty is not deposited within the time indicated therein, the appeal would be dismissed without further notice. The petitioner filed another application for modification of the stay order which on the meaningful reading would suggest that the petitioner prayed for waiver of the conditions of deposit of 10% of the penalty. The Tribunal not only dismissed the said application but dismisses the appeal itself. Both the orders are challenged in this writ petition. 23. On reading of the order by which an application for waiver of the pre-deposit of the penalties is disposed of. This Court does not find that the discretion so exercised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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