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TMI Blog2018 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ernatively, should we treat section 130 of the Act as not an efficacious alternative remedy vis-à-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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Customs), who is not a party here. 5. Through Ext.P1 order, the Chief Commissioner allowed all the applications: he set aside the orders of re-registration and remanded the matter to the Commissioner. The Chief Commissioner has directed the Committee of Officers to inquire into all aspects involving the courier services and submit a report to the Commissioner, who then will consider the issue. 6. In Kochi International Airport, as well, another Commissioner undertook a similar exercise but, eventually, took a lenient view-for valid reasons. On the contrary, the Commissioner at Trivandrum began proceedings under Customs Act, treating all imports as illegal, and passed the Ext.P3 order. Like other courier services, Indus, too, has been mulcted with tax, penalty, and interest, amounting to over 80 crore rupees. 7. Of the 12 courier services, two approached this Court at the stage of show cause, filed writ petitions, and had the proceedings stayed. All the others approached the Customs, Excise & Sales Tax Appellate Tribunal ("CESTAT"). In Indus's appeal, the Tribunal passed the Ext.P4 order; it directed Indus to deposit ten crores as a pre-condition for the Tribunal to entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided no substantial issue to enable the petitioner to raise any substantial question of law under section 130. He has also contended that this Court's jurisdictional sweep is too broad to be constricted, on the considerations of alternative remedy. For that matter, even Rule 40 of the Customs, Excise, and Service Tax Appellate Tribunal Procedure Rules, in fact, empower the Tribunal to recall its orders or review them-to prevent manifest injustice. So the petitioner cannot be driven, in the name of alternative remedy, to a forum that demands stricter compliance. In other words, this Court ought to entertain this writ petition. 15. Sri Augustian has relied on these decisions: Harbanslal Sahnia v Indian Oil Corporation Ltd. (2003)2 SCC 107), Raj Kumar Shivhare v Asst.Director, Directorate of Enforcement (2010(253) ELT 3(SC), Collector of Customs and Excise, Cochin v Bava AIR 1968 SC 13, Siddharth Opitcal Disc Pvt. Ltd. V Union of India 198(2013) DLT 210, Vigneswaran Sethuraman v Union of India 2014(308) ELT 394 (Ker.), Cyquator Media Services P.Ltd. V Union of India 2018(10) GSTL 297 (All.), Sankar Shasthyabdaporthi Memorial Hospital v Union of India 2017(345) ELT 334 (Ker.), Jain v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 17. Heard Sri P.A. Augustian, the learned counsel for the petitioner, and Sri Thomas Mathew Nellimoottil, the learned Senior Standing Counsel appearing for the first respondent, besides perusing the records. Discussion: 18. In this writ petition, I enter a caveat: I am not addressing the issue on merits. True it may prima facie appear inequitable that the Tribunal has not insisted on the pre-deposit in at least six cases, but remanded them for fresh adjudication. And in one case, the Tribunal granted a stay without insisting on the pre-deposit and kept the matter pending. 19. That said, I hasten to add that my observations, on what the petitioner projected, does not reflect in any way on the Tribunal's adjudication, much less do they cast aspersions on the Tribunal's discretion. For the learned Senior Standing Counsel has submitted that the Tribunal has its justification for the approach it adopted. According to him, all the cases turn on their own facts. In other words, the Tribunal has demanded pre-deposit in deserving cases, remanded some, and retained a few, where the adjudication is primarily technical. 20. As I have already observed, since I am not adverting to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot unloaded at their place of destination in India; (c) payment of drawback as provided in Chapter X, and the rules. 25. Leaving out what is not relevant for our purpose, we will concentrate on the crux. We may note that every appeal under section 129A shall be filed within three months from the date the impugned order is communicated to the Principal Commissioner of Customs or Commissioner of Customs, or the other party preferring the appeal. Subsection (4) deals with cross-objections, and Sub-section (5) with the Tribunal's power to condone the delay. 26. Section 129B focusses on the orders the Appellate Tribunal passes. The Tribunal can pass orders confirming, modifying, or annulling the order appealed against; it can refer for a fresh adjudication the case back to the authority that passed the order. At any time in six months after its passing an order, the Tribunal can review its order. Pivotal for our purpose is SubWPC No.18531 of 2018 13 section (4); it reads thus: Save as otherwise provided in section 130 or section 130E, an order passed by the Appellate Tribunal on appeal will be final. 27. Under section 129E of the Act, in fact, the appellant shall, pending the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub -section shall be - (a) filed within one hundred any eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub section shall be deemed to take away or abridge the power of the Court to hear; for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 is a self-imposed limitation. 33. To begin with, the recognized rules of exception to the alternative remedy, as held in Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 are these: (i) when the petitioner's fundamental rights are affected; (ii) when the principles of natural justice are violated; or (iii) when the impugned proceedings are ultra vires. The rule excluding the writ jurisdiction on the grounds of an alternative remedy is a rule of discretion and not one of compulsion. In Harbanslal Sahnia, the petitioners' dealership, "which is their bread and butter, came to be terminated for an irrelevant and nonexistent cause." So the Supreme Court has felt that the High Court should have entertained the petitioners' plea, rather than drive them to arbitration proceedings. A learned Single Judge of this Court in Vigneswaran Sethuraman has reiterated the Whirlpool Corpn's holding. The Calcutta High Court, too, has entertained the writ petition in Skyrise Overseas Pvt., Ltd., because it involved the principles of natural justice. 34. In A. S. Bava, the petitioner alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT for waiver of predeposit. In that context, a Division Bench of the Bombay High Court in Tejus Proprietary Concern has examined the powers of the Tribunal. After referring to a plethora of precedents, the Division Bench observed that a party can always seek a modification of the order "within the permissible limits and parameters laid down in law". In R.P. Techsoft International a learned Single Judge of this Court has entertained a writ petition. The plea of alternative remedy was explained away on the premise that the Court "is not interfering with the decision but with the decision-making process." 40. In Siddharth Optical Disc, the Delhi High Court has referred to the Supreme Court's emphasis on the words "ordinarily" and "efficacious". It acknowledged that "disputed questions of fact" may influence the choice: High Court is ill-suited to decide the questions of fact under summary jurisdiction. But the Division Bench, on facts, has held that Siddharth Optical Disc presents no disputed questions of facts. 41. In Cyquator Media Services, the petitioner had to meet the precondition of depositing 7.5% of the assessed duty to maintain an appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. This observation per se does not concern the alternative remedy. On an earlier occasion, the Supreme Court in Baburam Prakash Chandra Maheswari vs. Antarim Zila Parishad AIR 1964 SC 556 held that existence of alternative remedy is always not a bar for filing a writ petition if the petitioner asserts that the Court or Tribunal "acted against the provisions of law and in violation of principles of natural justice." So the Madras High Court, relying on these dicta, has accepted the writ petition in Jewels Magnum, despite the petitioner's having an alternative remedy. 46. Colour Flair Powder Coating needs deeper examination. It concerns section 35 F of the Central Excise Act, 1944. The provision deals with the deposit of duty demanded or penalty levied. If the statutory appeal relates to "any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act," the person who wants to appeal against the order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. But the Commissioner (Appeals) or the Appellate Tribunal may dispense with the pre-deposit if it reckons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944, rather than invoke Article 226. The order impugned in the writ petition, however, arose out of an interlocutory application for stay and waiver of pre-deposit. So the Division Bench has held that "an appeal under section 35G could only be on a question of law. When matters are decided on interlocutory applications such as applications for condonation of delay, etc., no substantial question of law may actually arise. Therefore, the remedy under Article 226 cannot be stated to have been completely kept out." 52. And, at times, precedents pass unnoticed-even the most vigilant eye may miss them. Diligent assistance denied, the Court ends up, as it happened here, not considering a binding precedent. As a result, it may take a view contrary to that a coequal Bench earlier taken. Here, the holding of Vijaya Casting Works differs from that of Patel Engineering, an earlier judgment of the same High Court. 53. Patel Engineering, I may note, earlier considered the same provision as did Vijaya Casting Works: section 35G of Central Excise Act. The impugned order was passed on an application-and an interlocutory one, at that-to have the pre-deposit dispensed with. The Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeal, like the limitation, court fees, partially paying the penalty, or fulfilling some other conditions. 58. As seen above, in Raj Kumar Shivhare the Supreme Court has considered the words "any order or "decision" of the Appellate Tribunal and found them to mean "all orders". The decision was under the FEMA Act, though. But similar are the expressions used in section 35 of the FEMA Act, 1999; in section 35G of the Central Excise Act, 1944; and in section 130 of the Customs Act, 1962: "any decision or order", "every order passed in appeal", and again "every order passed in appeal", respectively. 59. Thus, relying on Raj Kumar Shivhare, a Division Bench of Madras High Court, in a well-wrought judgment, M/s.Metal Weld Electrodes and Metro Trading Company v. CESTAT, Chennai, 20014 (2009) E.L.T. 3 (Mad.) has held that such interpretation as given by the Supreme Court must be applied with all force to other enactments containing same or similar phraseology. So it holds that if the final order alone was intended as an order to be appealed against under subsection (1) [of section 130], then there was no need for the legislature to have the word &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory appeal under section 130., but not the writ petition. What has Indus impugned? 63. 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. 64. 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. Equit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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