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TMI Blog1997 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... der Kumar, learned Senior Counsel appearing for the petitioner, as also Mr. Ashok Haranahalli, learned Senior Central Government Standing Counsel for the respondents that the said question pertains to rate of excise duty payable under the Act and therefore as against the impugned order of the Tribunal an appeal can lie only before the Supreme Court under Section 35L of the Act. It reads as under :- "Section 35L : Appeal to the Supreme Court. A appeal shall lie to the Supreme Court from - (a) xxxxxxxxxxxx any order passed by the Appellate Tribunal relating, among(b) other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment". 4.From the reading of the above provisions contained in Section 35L of the Act, it seems clear to us that even if one of the questions raised before the Tribunal for determination relate to a rate of duty of excise or to the value of goods for purposes of assessment, then the remedy by way of appeal against the order of the Tribunal can be only before the Supreme Court and such question cannot be subjected to the advisory jurisdiction of the High Court. Keeping i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral infirmity or jurisdiction has been raised to assail the impugned appellate order. 7.Before proceeding to discuss the rival contentions, we may notice two important aspects which are not at issue between the parties. These are :- (i) that the impugned order of the Tribunal is not assailable or is to be subjected to judicial review under the writ jurisdiction either on the ground of procedural infirmity or for want of jurisdiction of any authority including the Tribunal, and, (ii) Under the provisions of the Act the jurisdiction of the High Court of judicial review under Articles 226 and 227 of the Constitution of India has not been barred by making any specific provision under the Act in terms of Article 323B(3)(d) of the Constitution. 8.To substantiate his submission Shri Chander Kumar has brought to our notice the observations of the Supreme Court as made in paragraph 25 of the report in L. Chandra Kumar's case (supra) which is to the following effect :- "In R.K. Jain v. Union of India - 1993 (4) SCC 119 = 1993 AIR SCW 1899, a Division Bench of this Court consisting of three of us (Ahmadi, CJ., Punchhi and Ramaswamy, JJ.) had an occasion to deal with complaints conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under Articles 226 and 227 of the Constitution on merits as an appellate authority. 11.On the other hand, Mr. Ashok Haranahalli, learned Senior Central Government Standing Counsel, has submitted that the question as to whether despite the specific legislative mandate providing for statutory appeal only to the Supreme Court, an aggrieved person has still to approach the High Court at the first instance under Articles 226 and 227 of the Constitution was not at all in issue before the Supreme Court. Therefore, the observations of the Supreme Court sought to be taken benefit of by the appellant should not be taken as a law declared in the context of the provisions of the Act. He brought to our notice that the issues raised before the Supreme Court have been formulated in first paragraph of the judgment itself and the material question for the present purpose is question No. 1, namely:- (i) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of Article 323A or by sub-clause (d) of clause (3) of Article 323B of the Constitution, to totally exclude the jurisdiction of `all Courts', except that of the Supreme Court under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid ground. Therefore, admittedly the appellant has a right of appeal to the Supreme Court. Nonetheless, the appellant by filing an affidavit has stated that keeping in view the cost factor involved in preferring such appeal we should take the view that the said remedy has become nugatory and, therefore, this Court should interfere with the impugned appellate order on merits. To substantiate the said ground, certain statement of facts have been made by the appellant in para 5 of the I.A. filed today. It reads like this :- "As submitted above, in the present case the duty involved is to the extent of Rs. 1,76,056.41. The expenses involved in prosecuting the appeal before the Hon'ble Supreme Court is highly cost effective in the sense that the Advocate on record has to be engaged which costs about Rs. 15,000/- to 20,000/- per case. In addition Senior Counsel to argue the appeal is also required to be engaged for which the fees per day charges vary between Rs. 25,000/- to Rs. 40,000/- depending upon the Senior Advocate. Minimum of two to three hearings apart from preliminary hearing are involved. Thus, it will be seen that the cost of litigation in [this] case would be equivalent to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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