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TMI Blog2008 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 14th January, 2008 passed by S. Ravindra Bhat, J. By that order the learned Judge, while allowing the recall application of the respondent herein, held that a writ petition under Article 226 of the Constitution of India is maintainable against the order of the Appellate Tribunal for Foreign Exchange whereby the Tribunal had directed pre-deposit of 50% of the demanded penalty imposed by the Special Director. 2.A preliminary point was raised by the appellant herein before the learned single Judge that in view of Section 35 of the Foreign Exchange Management Act, 1999 (for short the Act ), the respondent should have filed an appeal and not the writ petition. The learned single Judge by his order dated 7th November, 2007 directed the writ petition to be treated as an appeal under Section 35 of the Act and listed before the appropriate bench. 3.The respondents herein preferred CMs for recalling the order on the ground that the order rejecting the application for waiver of pre-deposit is not appealable under Section 35 of the Act and the only remedy available with the respondents is to file writ petitions under Article 226 of the Constitution of India. Allowing the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.On the other hand, Mr.Rajiv Nayar, learned senior counsel, submits that under Section 35 of the Act not every order or decision of the Tribunal is appealable before the High Court. Only such orders or decisions which involve a question of law are appealable. The order disallowing the application for waiver of pre-deposit only deals with specific issue qua the financial inability of the respondent to pre-deposit the amount of penalty so demanded. Any challenge to such order was only on the factual matrix on the question of financial / undue hardship of the respondent to pre-deposit the penalty. Such challenge does not fall within the ambit of Section 35 of the Act. According to him, Section 35 of the Act is similar to Section 35G of the Central excise Act and various other legislations. It has been a consistent practice of various High Courts all over the country that the appeal would lie to the appellate forum against the final order involving the question of law and the interlocutory orders in the nature of pre-deposit are always challenged by way of writ petition under Article 226 of the Constitution of India. 8.A perusal of Section 35 shows that all orders are not appealable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mean and include only those orders which are substantially final in some sense or the other, and which finally dispose of or affect the parties' rights in regard to some important point in controversy. In my opinion, the words every order of the Tribunal has to be passed in appeal. Here the impugned order of the Tribunal was not passed in appeal but in a miscellaneous application directed towards rectifying a mistake apparent from the record. If the order under Section 254(2) had taken the shape of modifying by way of amendment or rectification, the original order to some extent, then both of those jointly might have been appealable under Section 260A; but an order of recall is clearly not appealable. Alternatively, even if appealable, the impugned order being also without jurisdiction, the writ application should be entertained in this case, as an exception, in the interest of expedition of the assessment proceedings. 10.In the case of Ruby Rubber Industries v. Commissioner of Central Excise 1999 ( 63 ) ECC 17, also rendered by the Calcutta High Court, it was held as follows: ...I am unable to accept the contention of the respondents that the writ petition is not maintainable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 226 of the Constitution of India where the remedy, if any, of appeal is uncertain as in the case appeals under Section 35, which depend on subjective satisfaction of the High Court of existence of a question of law. 14.In Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, the Supreme Court held that: 16. Rashid Ahmed v. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid and Son v. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, unless there are good grounds therefor , which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh as under: But this rule requiring the exha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.In the said judgment, while enunciating the wide scope of Article 226 of the Constitution, the Court nevertheless reiterated the self-imposed restrictions on the exercise of such right in the following words:-... But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop'' in the exercise of its jurisdiction under Article 226.'' 17.In Ram and Shyam Company v. State of Haryana and others (1985) 3 SCC 267, the Court explained the rule of exhaustion of alternative remedy in the following terms: The rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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