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TMI Blog2008 (7) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... .20821 dated 24.5.1994, 22225 dated 1.7.1994 and 20282 dated 23.6.1994 respectively. The appellant sought the assessment of the consignment under Notification Nos.90/94 and 91/94. The bills of entry were assessed provisionally under Section 18 of the Customs Act, 1962 and were cleared out of customs. It appears that on the basis of information supplied by the Directorate of Revenue Intelligence, a show cause notice was issued to the appellant on 31.10.1996 and the Commissioner of Customs, Chennai by his order in original imposed customs duty of Rs.73,23,578/- by enhancing the value of consignment to Rs.3,47,37,377/-. He ordered for the confiscation of the goods under Section 111(m) of the Customs Act, 1962 but allowed to be redeemed on payment of fine of Rs.10 lakhs and also imposed a penalty of Rs.5 lakhs on the appellant under Section 112 of the Customs Act. As against the said order, the appellant filed appeal before the second respondent - CEGAT. The second respondent by order dated 20.1.1998 has concluded as follows: ".... In this connection, we are of the view that this is a fit case which requires to be remanded for considering the plea of the appellants with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the other hand, the learned counsel appearing for the Department contended that the writ petition itself is not maintainable as during the relevant period, under Section 130 of the Customs Act, if the importer has not accepted the order of the CEGAT, he can request the CEGAT to make a reference to the High Court by raising a question of law. Without following statutory remedy, filing a writ petition under Article 226 of the Constitution of India is nothing but short-circuiting the statutory remedy, which has been deprecated by this Court as well as the Supreme Court in several cases. He relied on a decision of the Division Bench of this Court in the case of M/s. Nivaram Pharma Private Limited Represented by its Director Sardarmal M.Chordia, Madras v. The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras And Others, 2006 (205) E.L.T. 9 (Mad.) = (2005) 2 M.L.J. 246. On merits, he contended that Section 129B of the Customs Act empowers the Tribunal to impose, what ever direction it thinks fit in the interest of justice and hence the imposition of pre-condition directing the appellant to deposit fifty percent of the differential value is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: "...4. We are surprised that this writ petition was entertained at all. There was a clear alternative remedy against the order of the CEGAT dated 9.7.1997 by means of filing a Reference Application before the CEGAT under Sec.35-G(1) of the Central Excise Act (hereinafter referred to as the Act) and if that application was rejected by the CEGAT there was a second alternative remedy of approaching this Court under Sec.35-G(3) of the Act seeking a direction to the CEGAT to make a reference to this Court. 5. It is well settled by a series of decisions of the Supreme Court that particularly tax matters there should be no short circuiting of the statutory remedies. ...." 11. There is another line of judgments of Supreme Court to the effect that when there is no factual dispute and only issue to be decided is, a question of law or interpretation of a statute, the availability of the alternative remedy cannot be regarded as a factor impinging upon the jurisdiction of the High Court to deal with the matter itself, if it is in a position to do so on the basis of the averments made in the affidavit. The Supreme Court went on to the extent of saying that even when an alternative remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suppression of which could have affected the final disposal of the writ petition on merits. 12. Further, the power vested with the High Court under Article 226 of the Constitution to exercise judicial superintendence over the decisions of all Courts and tribunals is part of basic structure of the Constitution. Such an inviolable jurisdiction of the Court cannot be said to be impinged because of availability of alternate remedy. (vide Seven Judges Judgment of the Supreme Court in L. Chandra Kumar case (1997(3) SCC 261). 13. In view of the above categorical enunciation of law by the Supreme Court and having regard to the issue to be resolved in this case, which is pure and simple interpretation of the scope of the statuary provision, we are of the considered view that the appellant should not be thrown away on the ground of alternative remedy, after passage of one decade. Hence, Point No.1 is answered in the negative and in favoaur of the appellant. Point No.2: 14. Now, let us deal with the second point. The relevant provision - Section 129B of the Customs Act reads as follows: "129B. Orders of Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appealed and remit back to the adjudicating authority. It is needless to say that the Tribunal is a creation of the statute and it has to perform its function in accordance with the power conferred on it. Giving direction to the original authority while remitting back the matter is one thing to which it is empowered but imposing a pre-condition is a different thing with which no power has been vested with the Tribunal. 17. There is a ocean of difference between the terminology "direction" to the lower authorities to do de novo adjudication proceedings in a particular way and the terminology "pre-condition" imposing for setting aside the order appealed. The direction means giving certain guidance or command. The condition is a thing on whose fulfillment another thing or act is made to depend. "Condition" is a restraint or bridle annexed and joined to a thing so that by the non-performance or not doing of the same, certain contingent event would not happen. 18. As per Section 129B of the Customs Act, the Tribunal is vested with the power either to confirm or modify or annul the decision of order appealed against. In the facts of the case, the Tribunal did not think ..... X X X X Extracts X X X X X X X X Extracts X X X X
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