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TMI Blog1992 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... of the exemption granted by the Notification No. 160/88, dated 13-5-1988. They also sought for a writ in the nature of mandamus directing the authorities to permit release and clearance of the consignments imported by them under Bills of Entry without levy of auxiliary duty of customs in excess of 5%; and costs of the writ petitions and for such other reliefs. Whereas the petitioners in W. Ps. 13097 13098/88 sought for a declaration that the Bills of Entry Nos. 1657 and 1656 dated 13-7-1988 (Ann. C D in those W. Ps.) were classifiable under Entry 4403.33 of the Schedule to the Customs Tariff Act, 1975 and as such, they were entitled to the exemption under the Notification No. 88/88, dated 1-3-1988. They also further prayed for a direction to the respondents therein, to permit the petitioners to clear and release the goods imported by them under Bill of Entry Nos. 1657 and 1656 dated 13-7-1988, upon payment of auxiliary duty at the rate of 5% ad valorem. They also sought for quashing the adjudication order dated 22-8-1988 passed by the Assistant Collector of Customs, Mangalore, produced at Annexure-M, in which it was held that the goods imported by the petitioners were not exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Single Judge has set aside the order of the Assistant Collector and remitted all the matters to the Assistant Collector for fresh determination both on facts and Law. 5. While remitting the matters to the Assistant Collector, the learned Single Judge has further directed in all these writ petitions as follows : "Further I also notice that during the pendency of these proceedings this Court had passed certain interim orders allowing the petitioners to remove the goods in question subject to the condition of furnishing Bank Guarantee to the extent of the duty likely to be imposed and if the benefit of the interim order is given to the petitioners until disposal of the proceedings by the CEGAT ultimately would adequately protect the interests of the petitioners. In this background though the learned Counsel for the petitioners urged that this Court should itself decide the matter, considering all aspects of the matter I think it would be proper to adopt the course suggested on behalf of the respondents." Now, the respondents in the writ petitions have come up in appeal. It is contended before us that it is not at all permissible to issue a direction in the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is empowered under the Act, to determine the facts necessary for the purpose of the reliefs sought in a writ petition under Art. 226 of the Constitution. Therefore, the learned Single Judge, after having come to a conclusion that necessary facts are to be found by the fact-finding authority, remitted the cases. The question that arises for consideration is, "whether after remitting the case, the direction of the nature given by the learned Single Judge is justified in law. It is true, the interim directions or orders are passed so as to ensure that the ultimate relief available to the party is not affected and the delay in deciding the case should not adversely affect the party. But, in a case where this Court declines to decide and considers it necessary that relevant facts are to be found by the fact-finding authority and remits the case for that purpose, and the law governing the case provides for an appeal against the order of the original authority and further appeal against the order of the first appellate authority and that law further prescribes certain conditions to be fulfilled or satisfied even for preferring an appeal, further appeal and the final appeal to the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardship. It is a matter of judicial discretion of the Appellate Authority. That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established, it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority." Therefore, it is clear that the appellant cannot avail the right of appeal unless he complies with the proviso to Section 129E or satisfies the Collector or the Appellate Tribunal, as the case may be, that the condition of depositing the duty demanded or penalty levied would cause undue hardship to him. In that event, it is open to the Collector or the Appellate Tribunal, as the case may be, to exempt him from depositing duty demanded or the penalty levied. From the order of the Collector (Appeals), further appeal lies to the Customs, Excise and Gold (Control) Appellate Tribunal under Section 129A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court had no jurisdiction to pass such order under Art. 226 under the circumstances of the case. This is not a case where the Court before finally disposing of a petition under Art. 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo. The question which we have to determine is whether directions in the nature of interim relief only could be granted under Art. 226 when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In our opinion Art. 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of S. 80, Civil P.C. and in our opinion that is not within the scope of Art. 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it mig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the respondents that this Court must decide the writ petitions on merits. In these cases, necessary facts are disputed; therefore the disputed questions of facts cannot appropriately be gone into by this Court in exercise of Art. 226 of the Constitution. Further, we do not think it necessary to go into those facts because the Act provides series of forums for determination of the facts. Initially, the jurisdiction is exercisable by the Assistant Collector, then there is first appeal to the Collector and then second appeal to the CEGAT which also can go into the question of facts and finally, appeal lies to the Supreme Court. Therefore, we do not think it necessary that in exercise of jurisdiction under Art. 226 of the Constitution, the question of facts in a case like this, need be gone into. 7.1 However, it is contended by Shri K.G. Raghavan, learned Counsel for the respondents in the first batch of appeals, that the matter is covered by the decision of this Court in Moideen Kunhi v. Collector of Central Excise, Bangalore -1986 (23) E.L.T. 293, which is affirmed by the Supreme Court in Collector of Central Excise, Madras v. M/s. Kutty Flush Doors and Furniture Co. (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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