9911796707
TMI Blog1992 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal lies to the Collector (Appeals), against the said order. In the affidavit filed in support of the writ petition it is stated that the right of appeal is purely illusory and as the order of adjudication is vitiated by errors apparent on the face of the record, it can be challenged in this Court under Article 226 of the Constitution of India. 2. In the course of arguments, it was contended that the Assistant Collector had no jurisdiction to pass an order revising the value fixed by his predecessor and, therefore, this Court should interfere. I am not inclined to interfere in this matter, because it is not stated in the affidavit as to how the right of appeal is illusory. Merely stating that the right of appeal is illusory will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hari [1987 (30) E.L.T. 156 (Cal.) =(1985) 6 Excise Customs Cases 81], it was held by the Calcutta High Court that the power to give option to the importer to realise the prohibited goods upon payment of fine is a power coupled with duty and in any event it should be exercised fairly and reasonably and not arbitrarily and capriciously. 5. In Hargovind Das K. Joshi v. Collector of Customs [1992 (61) E.L.T. 172 (S.C.) = (1987) 14 ECC 233], the Supreme Court held that on the facts of the case the order directing confiscation of the consignment was unassailable and the order levying penalty was also justified. However, the Supreme Court remitted the matter to the Collector of Customs for the limited purpose and to the limited extent as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared by that Court and starts proceedings in direct violation of such law, a writ of prohibition shall issue. The observations of the Supreme Court have no bearing on the present case. This is a case in which an order has been passed by the Assistant Collector taking a particular view on the facts of the case. If according to him the facts of the case do not warrant giving an option to the petitioner, then it is for the appellate authority to decide whether on the facts of the case the discretion should have been exercised in favour of the petitioner and an option should have been given to him to redeem the goods. That is a question which can be decided only by the appellate authority and not under Article 226 of the Constitution of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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