M/S. Indus Logistics v. Commissioner of Central Excise and Customs, Thiruvananthapuram; Commissioner of Customs (Preventive), Cochin; Assistant Registrar Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **FRIDAY ,THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** ## **WP(C).No. 18531 of 2018** ## **PETITIONER/S:** **M/S.INDUS LOGISTICS TC.NO.34/690, CELINE COTTAGE,NEAR AIR FORCE STATION, SHANKUMUGHAM,BEACH POST OFFICE, THIRUVANANTHAPURAM695007,REPRESENTED BY ITS MANAGING PARTNER,GODFREY PRATHAP.** **BY ADV. SRI.P.A.AUGUSTIAN** ## **RESPONDENT/S:** **1 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS T.C.NO.26/34, PRESS CLUB ROAD, I C E BHAVAN,THIRUVANANTHAPURAM-695001. 2 COMMISSIONER OF CUSTOMS (PREVENTIVE) 5TH FLOOR, CATHOLIC CENTRE,BROADWAY, COCHIN-682031. 3 ASSISTANT REGISTRAR CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,SOUTH ZONAL BENCH, IST FLOOR, WTC BUILDING,FKCCI COMPLEX, K G ROAD,BANGALORE- 560009.** **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF EXCISE & CUSTOMS** ## **OTHER PRESENT:** **SR SC THOMAS MATHEW NELLIMOOTTIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.18531 of 2018 2 ## **JUDGMENT** Introduction: The question is often raised: Does an alternative remedy affect this Court’s power of judicial review? The answer is often given: It does not, as the restraint is self-imposed. But the Court, in its choosing a course of action, must be judicious and deferential to the legislative wisdom. Here, too, the same question raises like a phoenix from the precedential ashes. And demands an answer—yet again. 2. As the dispute is under the Customs Act, 1962, section 130 provides for an appeal to this Court—distinguished from a writ petition—on every order the Appellate Tribunal passes. Does that ‘every order’ cover an interim order, too? Facts in Brief: 3. Indus Logistics, the petitioner, is a courier agency operating in Trivandrum International Airport. It obtained a license in 1998. There seem to be 12 courier operating agencies at the Airport. They handle parcels WPC No.18531 of 2018 3 sent by people abroad to those in this country. Based on the weight and value of the parcels, the courier agencies prepare consolidated bills of entry and submit them to the customs authorities. 4. Indus complains that in 2013, a new Commissioner assumed charge and decided to review the courier operations. The first respondentCommissioner, after reviewing them, in March 2013 suspended all the courier licenses and, later, deregistered them. Aggrieved, Indus and other courier agencies invoked Regulation 14 (2) of the Courier Imports and Exports (Clearance) Regulation, 1998, and represented before the Chief Commissioner (Customs), who is not a party here. 5. Through Ext.P1 order, the Chief Commissioner allowed all the applications: he set aside the orders of re-registration and remanded the matter to the Commissioner. The Chief Commissioner has directed the Committee of Officers to inquire into all aspects involving the courier services and submit a report to the Commissioner, who then will consider the issue. 6. In Kochi International Airport, as well, another Commissioner undertook a similar exercise but, eventually, took a lenient view—for valid reasons. On the contrary, the Commissioner at Trivandrum began WPC No.18531 of 2018 4 proceedings under Customs Act, treating all imports as illegal, and passed the Ext.P3 order. Like other courier services, Indus, too, has been mulcted with tax, penalty, and interest, amounting to over 80 crore rupees. 7. Of the 12 courier services, two approached this Court at the stage of show cause, filed writ petitions, and had the proceedings stayed. All the others approached the Customs, Excise & Sales Tax Appellate Tribunal (“CESTAT”). In Indus’s appeal, the Tribunal passed the Ext.P4 order; it directed Indus to deposit ten crores as a pre-condition for the Tribunal to entertain the appeal. Indus assails the Ext.P4 in this writ petition. ## A Collateral Development: 8. Before proceeding further, I may have to refer to another development. Indus failed to comply with the Ext.P4 order; as a result, the Tribunal dismissed the appeal through the Ext.P10 order. Then Indus filed the Ext.P11 restoration petition; the Tribunal, however, dismissed it through the Ext.P12 order. 9. So Indus, in this writ petition, challenged both the Ext.P4 conditional order of stay and the ExtP12 dismissal order of restoration. Submissions: WPC No.18531 of 2018 5 Petitioner’s: 10. Sri P.A. Augustian, the petitioner’s counsel, has submitted that all other courier services which approached the Tribunal had their matters remanded to the Commissioner, and none were asked to deposit any amount before the remand. Among those appeals, however, one remains on the Tribunal's file. In that, too, the Tribunal demanded no pre-deposit, yet granted an unconditional stay. According to Sri Augustian, the course adopted by the Tribunal is invidiously discriminatory, causing immense prejudice to the petitioner’s right of redressal. 11. Elaborating on his submissions, Sri Augustian has submitted that only because Indus has not complied with the Ext.P4 pre-deposit order, did the Tribunal dismiss the appeal. His contention, therefore, is two-fold: (1) Mere non-compliance with an interim direction should not result in an automatic dismissal of the case. The Tribunal, even without staying the proceedings, ought to have heard the matter—on merits. (2) The Tribunal has ample power to recall its own orders. Despite clear precedents to that effect, but the Tribunal took a hyper-technical view and refused to restore the appeal. As a result, the Ext.P12 order too cannot be sustained. 12. Faced with the problem of the alternative remedy, Sri Augustian WPC No.18531 of 2018 6 has laboured to impress upon the Court that the alternative remedy is no bar. 13. Sri Augustian has reminded me that this Court has taken a consistent view that it can review under 226 of the Constitution any judicial, quasi-judicial, or administrative decision—the alternative remedy notwithstanding. According to him, under identical circumstances—even recently—this Court, on more than one occasion, has held that the writ petition is maintainable. 14. In short, Sri Augustian contended that both the Exts.P4 and P12 are interim orders. The Tribunal decided no substantial issue to enable the petitioner to raise any substantial question of law under section 130. He has also contended that this Court’s jurisdictional sweep is too broad to be constricted, on the considerations of alternative remedy. For that matter, even Rule 40 of the Customs, Excise, and Service Tax Appellate Tribunal Procedure Rules, in fact, empower the Tribunal to recall its orders or review them—to prevent manifest injustice. So the petitioner cannot be driven, in the name of alternative remedy, to a forum that demands stricter compliance. In other words, this Court ought to entertain this writ petition. 15. Sri Augustian has relied on these decisions: Harbanslal Sahnia v WPC No.18531 of 2018 7 Indian Oil Corporation Ltd.[[][1][]] , Raj Kumar Shivhare v Asst.Director, Directorate of Enforcement[[][2][]] , Collector of Customs and Excise, Cochin v Bava[[][3][]] , Siddharth Opitcal Disc Pvt. Ltd. V Union of India[[][4][]] , Vigneswaran Sethuraman v Union of India[[][5][]] , Cyquator Media Services P.Ltd. V Union of India[[][6][]] , Sankar Shasthyabdaporthi Memorial Hospital v Union of India[[][7][]] , Jain v Chairman, Income Tax Settlement Commission[[][8][]] , Hitachi Home & life Solutions Ltd. V State[[][9][]] , Vijay Casting Works v Union of India[[][10][]] , Indo Foreign (Agents) Pvt.Ltd. V Union of India[[][11][]] , Jewels Magnum v Development Commr.MEPZ-SEZ, Chennai[[][12][]] ,Natural Woods & Veneers Pvt. Ltd. V Commissioner of Central Excise[[][13][]] ,Baburam Prakash v Zilla Parikshath[[][14][]] , Manthena Satyanarana Raju Charitable Trust v Union of India[[][15][]] , Sukh Ram v Directorate of Enforcement[[][16][]] , Siddhi Vinayak Syntex - 1 _**[[]]**_ (2003)2 SCC 107) - 2 _**[[]]**_ (2010(253) ELT 3(SC) - 3 _**[[]]**_ AIR 1968 SC 13 - 4 _**[[]]**_ 198(2013) DLT 210 - 5 _**[[]]**_ 2014(308) ELT 394 (Ker.) - 6 _**[[]]**_ 2018(10) GSTL 297 (All.) - 7 _**[[]]**_ 2017(345) ELT 334 (Ker.) - 8 _**[[]]**_ 2017(352) ELT 324 (Del.) - 9 _**[[]]**_ 2018(8) GSTL 370(J & K) - 10 _**[[]]**_ 2017(352) ELT 305 (A.P.) - 11 _**[[]]**_ 2017(349) ELT 564(Cal.) - 12 _**[[]]**_ 2017(349) ELT 214 (Mad.) - 13 _**[[]]**_ 2014(309) ELT 220 (Ker.) - 14 _**[[]]**_ 1969 KHC 721 - 15 _**[[]]**_ 2017(3) GSTL 213(A.P.) - 16 _**[[]]**_ 2017(357) ELT 101(Del.) WPC No.18531 of 2018 8 Pvt.Ltd. V Union of India[[][17][]] , CC V McDowell & Co Ltd.[[][18][]] , M/s Aswin Gold Pvt. Ltd. V Commissioner of Customs (Preventive)[[][19][]] , Skyrise Overseas Pvt. Ltd v. Commissioner of Customs (Port)[[][20][]] , M/s. Indam Recycling Co. (P) Ltd v. Union of India[[][21][]] , Commissioner of Customs & Central Excise, Goa v. Pankaj Jaju[[][22][]] , Colour Flair Powder Coating P. Ltd. v. Commissioner of Customs & Central Excise, Nashik[[][23][]] , Huller Screens Manufacturing Co. v. Commissioner of Customs Excise, Kolkata-I[[][24][]] , Tejus Proprietary Concern of Tejus Rohitkumar Kapadia v. Union of India[[][25][]] , and Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd.[[26]] Respondents’: 16. On the other hand, Sri Thomas Mathew Nellimoottil, the learned Senior Standing counsel for the Department, has submitted that section 130 is expansive in its scope. Through judicial interpretation, many High Courts and the Supreme Court have held that the expression “all the 17 _**[[]]**_ 2017(352) ELT 455(Guj.) 18 _**[[]]**_ 2005(186) ELT 145 (Ker.) > 19 _**[[]]**_ Judgment dtd.28[th] June 2018 of Kerala High Court - 20 _**[[]]**_ 2017 (353) E.L.T. 421 (Cal.) 21 _**[[]]**_ Judgment dtd.18[th] July 2014 of Kerala High Court 22 _**[[]]**_ 2014(313) E.L.T.5(Bom.) - 23 _**[[]]**_ 2016 (342) E.L.T. 111 (Bom.) - 24 _**[[]]**_ 2015(315) E.L.T. 544(Cal.) - 25 _**[[]]**_ 2012(275) E.L.T.175 (Bom.) - 26 _**[[]]**_ 1999(106) E.L.T. 9(S.C.) WPC No.18531 of 2018 9 orders” used in section 130 includes even the interlocutory orders. On the substantial question of law, the learned Senior Standing Counsel has submitted that it is for Indus to frame one and impress upon the appellate forum on it. He has also contended that Article 226 cannot be treated as a residuary jurisdictional provision for this Court to entertain petitions when those petitions could not be maintained under other statutes. For this, he too has drawn my attention to a handful of precedents, which I will refer to by and by. 17. Heard Sri P.A. Augustian, the learned counsel for the petitioner, and Sri Thomas Mathew Nellimoottil, the learned Senior Standing Counsel appearing for the first respondent, besides perusing the records. Discussion: 18. In this writ petition, I enter a caveat: I am not addressing the issue on merits. True it may prima facie appear inequitable that the Tribunal has not insisted on the pre-deposit in at least six cases, but remanded them for fresh adjudication. And in one case, the Tribunal granted a stay without insisting on the pre-deposit and kept the matter pending. 19. That said, I hasten to add that my observations, on what the petitioner projected, does not reflect in any way on the Tribunal’s WPC No.18531 of 2018 10 adjudication, much less do they cast aspersions on the Tribunal’s discretion. For the learned Senior Standing Counsel has submitted that the Tribunal has its justification for the approach it adopted. According to him, all the cases turn on their own facts. In other words, the Tribunal has demanded pre-deposit in deserving cases, remanded some, and retained a few, where the adjudication is primarily technical. 20. As I have already observed, since I am not adverting to the merits, it is not in my province to examine the correctness of the course adopted by the Tribunal. I will thus confine to only two questions: 1) Does the Ext.P4 sustain itself on its demanding pre-deposit? 2) Does a writ petition lie against the Exts.P4 and P12 interlocutory orders, just because the petitioner could not treat them as giving rise to substantial questions of law? 21. To put the arguments in perspective, I may note that section 130 of the Customs Act, 1962, enables an aggrieved person to question the Tribunal’s any order here in a statutory appeal; this statutory appeal, however, must be on a substantial question of law. Then, the question is, can Indus abandon that remedy and invoke this Court’s power of judicial review under the Article 226. I must have a word of appreciation for the petitioner’s counsel on his efforts to research the issue and, thus, assist the WPC No.18531 of 2018 11 Court. Indeed, the Indus’s counsel has drawn my attention to a profusion of precedents dealing with the alternative remedy. But the precedents are too numerous to any judge’s comfort. After all, the road of excess need not always lead to the place of wisdom. So I avoid dealing with those that repeat what was held in other decisions. Alternative Remedy: 22. To think of an alternative remedy, we must first study what the threshold remedy is. Then, the statute examined, we find section 130 of the Act. But before considering that provision, we may examine what leads a person to appeal. 23. First, we will examine section 129A of the Act. It deals with the “appeals to the Appellate Tribunal.” A person may have been aggrieved by one of these orders: (a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs, as an adjudicating authority; (b) an order passed by the Commissioner (Appeals), under section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs, under section 128; and (d) an order passed by the Board or the Principal Commissioner of Customs or Commissioner of Customs, under section 130. That aggrieved person may assail the order WPC No.18531 of 2018 12 before the Appellate Tribunal. 24. But no appeal lies to the Appellate Tribunal against an order passed under section 128(A) of the Act if that order relates to (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India; (c) payment of drawback as provided in Chapter X, and the rules. 25. Leaving out what is not relevant for our purpose, we will concentrate on the crux. We may note that every appeal under section 129A shall be filed within three months from the date the impugned order is communicated to the Principal Commissioner of Customs or Commissioner of Customs, or the other party preferring the appeal. Subsection (4) deals with cross-objections, and Sub-section (5) with the Tribunal’s power to condone the delay. 26. Section 129B focusses on the orders the Appellate Tribunal passes. The Tribunal can pass orders confirming, modifying, or annulling the order appealed against; it can refer for a fresh adjudication the case back to the authority that passed the order. At any time in six months after its passing an order, the Tribunal can review its order. Pivotal for our purpose is Sub- WPC No.18531 of 2018 13 section (4); it reads thus: Save as otherwise provided in section 130 or section 130E, an order passed by the Appellate Tribunal on appeal will be final. 27. Under section 129E of the Act, in fact, the appellant shall, pending the appeal, deposit a certain portion of the disputed duty and penalty for the appeal to be entertained. That is, the Tribunal will entertain no appeal under sub-section (1) of section 128 or sub-section (1) of section 129A unless the appellant has deposited 7.5% of the disputed duty or penalty. If it is an appeal against an order under clause (b) of sub-section (1) of section 129A, the appellant must deposit 10%. of the disputed duty or penalty—the maximum pre-deposit not exceeding ten crore rupees. 28. Now, we will examine section 130 that deals with “Statement of case to High Court.” Though the provision suffered a drastic amendment with effect from 1st July 2003, the caption “statement,” rather than “appeal,” remained in its heading. The provision mandates that an appeal will lie to the High Court from every order the Appellate Tribunal passes. But that order must not be the one that decides the rate of customs duty or the value of the goods to be assessed. To maintain an appeal, the appellant must show to the High Court “a substantial question of law.” WPC No.18531 of 2018 14 29. The aggrieved person, as sub-section (2) dictates, may file an appeal to the High Court (a) in one hundred and eighty days after the appellant’s receiving the order. If the High Court finds a substantial question of law, it will formulate that question. The High Court will hear the appeal only on the issue it formulated. But nothing abridges the High Court’s powers to consider any other substantial question of law, not formulated by it. The High Court, as sub-section (6) mandates, may decide any issue which the Appellate Tribunal has not resolved, or wrongly resolved. The appeal must be heard by a Division Bench—that is, not fewer than two Judges of the High Court. And sub-section (9) applies the Code of Civil Procedure, as it does to other appeals before the High Court. The provision reads: 130. Statement of case to High Court. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub -section shall be – (a) filed within one hundred any eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; WPC No.18531 of 2018 15 - (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. - (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub section shall be deemed to take away or abridge the power of the Court to hear; for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- - (a) has not been determined by the Appellate Tribunal; or - (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub -section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of th e Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908, relating to appeals to the High Court shall, as far as may be, apply in the case of appeal s under this section. 30. So section 130 analyzed, we find that, to maintain an appeal the appellant must satisfy the High Court that impugned order raises a substantial question of law. Then, the High Court formulates an issue, as it WPC No.18531 of 2018 16 does under section 100 of CPC, and adjudicates. Now, the question is, can an interlocutory order, too, give rise to a substantial question of law? Alternatively, should we treat section 130 of the Act as not an efficacious alternative remedy vis-à-vis an interim order the Appellate Tribunal passes? Precedents: 31. The issue of alternative remedy is every High Court’s Sisyphean task. To borrow from the Greek mythology, the Court labours on a slippery slope, trying to carry that issue to the precedential pinnacle. Every time the Court rules on it, hoping that to be the last word; the issue in the next case is seen rolled down to the bottom, letting the Court toil once again up the slippery decisional slope. As the precedents proliferate, so do the contradictions. 32. In almost all these decisions cited on either side, the issue is the alternative remedy. The law is well established and invariably stands reiterated in all these judgments that the alternative remedy vis-à-vis Article 226 is a self-imposed limitation. 33. To begin with, the recognized rules of exception to the alternative are remedy, as held in Whirlpool Corpn. v. Registrar of Trade Marks,[[][27][]] these: (i) when the petitioner’s fundamental rights are affected; (ii) when the > 27 **[[]]** (1998) 8 SCC 1 WPC No.18531 of 2018 17 principles of natural justice are violated; or (iii) when the impugned proceedings are ultra vires. The rule excluding the writ jurisdiction on the grounds of an alternative remedy is a rule of discretion and not one of compulsion. In Harbanslal Sahnia, the petitioners' dealership, “which is their bread and butter, came to be terminated for an irrelevant and nonexistent cause.” So the Supreme Court has felt that the High Court should have entertained the petitioners’ plea, rather than drive them to arbitration proceedings. A learned Single Judge of this Court in Vigneswaran Sethuraman has reiterated the Whirlpool Corpn’s holding. The Calcutta High Court, too, has entertained the writ petition in Skyrise Overseas Pvt., Ltd., because it involved the principles of natural justice. 34. In A. S. Bava, the petitioner alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals. That is, he raised a jurisdictional issue. So the Supreme Court observed that because of that allegation, the petitioner needed not file a revision under the Customs Act. 35. A learned Single Judge of this Court in Natural Woods & Veneers has found “clear violation of the principles of natural justice” for the petitioner was not afforded an opportunity of hearing. So the remedy of WPC No.18531 of 2018 18 appeal would not stand in the petitioner’s way to get the relief under Article 226 of the Constitution. Siddhi Vinayak Syntex reflects the same view. It notes the petitioner’s contention: the impugned order suffers from want of jurisdiction, as the adjudicating authority exercised powers beyond a reasonable period and thus breached the principles of natural justice. So the Court discarded the objection of alternative remedy. In Manthena Satyanarayana Raju Charitable Trust case, too, the High Court of Telangana and Andhra Pradesh has found the impugned order suffering the vice of violating the natural justice. So is the Delhi High Court’s dictum in Sukh Ram. 36. In McDowell a learned Single Judge entertained a writ petition filed by the very Department that now contends that no writ petition lies. In the judgment, the High Court has addressed the exceptional circumstances under which Article 226 can be invoked even in the face of an alternate remedy. 37. In M/s Indam Recycling, a learned Single Judge finds no reason to relegate the petitioner to appellate remedy “when matters are not decided on merits;” that is, when the case was dismissed for default, especially, because of the counsel reporting no instruction. WPC No.18531 of 2018 19 38. On the other hand, Pankaj Jaju deals with the inherent powers of the Tribunal. It notes that Rule 20 permits the Tribunal to dismiss an appeal for the appellant’s non-appearance. But proviso to the Rule enables it to restore the appeal. The Court also points to Rule 41, which enables the Tribunal “to make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.” So the Court finds that the Tribunal has ample powers to restore an appeal to file. The Calcutta High Court in Huller Screens also refers to Rule 41 to hold that the Tribunal does have the power to modify an order directing pre-deposit. 39. Once an appellant applied before the CESTAT for waiver of predeposit. In that context, a Division Bench of the Bombay High Court in Tejus Proprietary Concern has examined the powers of the Tribunal. After referring to a plethora of precedents, the Division Bench observed that a party can always seek a modification of the order "within the permissible limits and parameters laid down in law". In R.P. Techsoft International a learned Single Judge of this Court has entertained a writ petition. The plea of alternative remedy was explained away on the premise that the Court “is not interfering with the decision but with the decision-making process.” WPC No.18531 of 2018 20 40. In Siddharth Optical Disc, the Delhi High Court has referred to the Supreme Court’s emphasis on the words "ordinarily" and "efficacious". It acknowledged that “disputed questions of fact” may influence the choice: High Court is ill-suited to decide the questions of fact under summary jurisdiction. But the Division Bench, on facts, has held that Siddharth Optical Disc presents no disputed questions of facts. 41. In Cyquator Media Services, the petitioner had to meet the precondition of depositing 7.5% of the assessed duty to maintain an appeal before the CESTAT. It wanted the Allahabad High Court to dispense with that precondition. Then the Court interpreted section 35 F of the Central Excise Act, 1944. In that context, the Allahabad High Court has relied on the Supreme Court’s judgments in Shyam Kishore v. Municipal Corporation Of Delhi,[28] and P. Laxmi Devi. It held that “the High Court under Article 226 of the Constitution is vested with the jurisdiction in an appropriate case to dispense with the requirement of pre-deposit.” About the alternative remedy, too, the Court has held that its powers under Article 226 cannot be abridged. The same provision fell for consideration in Natural Wood & Veneers Pvt., Ltd. A learned Single Judge of this Court has > 28 **[[]]** AIR 1992 SC 2279 WPC No.18531 of 2018 21 concluded that the Tribunal passed the impugned order disregarding the principles of natural justice. 42. In Shankar Shashtyabdapoorthi Memorial Hospital, this Court, per a learned Single Judge, has noted that the case raised a pure question of law and that the matter stood admitted already. So it refused to entertain an objection about the alternative remedy. 43. In R.K. Jain, an authority’s power, or the lack of it, has fallen for consideration; in other words, it is a question of vires. In Hitachi Home & Life Solutions, the Delhi High Court has, first, accepted that the petitioner has an alternative remedy; but on facts, then, it has held that “relegating the petitioner to the alternative remedy would be a mere exercise in futility”. That the writ petition stood admitted by then also weighed with the Court. 44. Though Indus cited Indo Foreign (Agents) Pvt. Ltd., its holding, in fact, goes against it. Despite its appealability, the petitioner assailed an order in a writ petition. The Calcutta High Court has observed that an alternative statutory remedy does not oust the High Court’s jurisdiction under Article 226. But once a person applies under Article 226 of the Constitution, he must sustain his case, the Court observed, based on the judicially established exceptions. Then, on facts, the Court found no exceptions WPC No.18531 of 2018 22 established, and so dismissed the writ petition. 45. The Supreme Court in Mani Subrat Jain v. State of Haryana[29] has held that “no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right” violated before a person can ask for a mandamus. This observation per se does not concern the alternative remedy. On an earlier occasion, the Supreme Court in Baburam Prakash Chandra Maheswari vs. Antarim Zila Parishad[30] held that existence of alternative remedy is always not a bar for filing a writ petition if the petitioner asserts that the Court or Tribunal “acted against the provisions of law and in violation of principles of natural justice.” So the Madras High Court, relying on these dicta, has accepted the writ petition in Jewels Magnum, despite the petitioner’s having an alternative remedy. 46. Colour Flair Powder Coating needs deeper examination. It concerns section 35 F of the Central Excise Act, 1944. The provision deals with the deposit of duty demanded or penalty levied. If the statutory appeal relates to “any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act,” 29 **[[]]** AIR 1977 SC 276 30 **[[]]** AIR 1964 SC 556 WPC No.18531 of 2018 23 the person who wants to appeal against the order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. But the Commissioner (Appeals) or the Appellate Tribunal may dispense with the pre-deposit if it reckons that the condition “would cause undue hardship” to the appellant. Instead, it may impose any other suitable condition. If the appellant wants the condition of pre-deposit dispensed with, the Appellate Authority must decide on that request. 47. If we examine the facts, in Colour Flair Powder Coating, the Tribunal dismissed the appeal for non-prosecution. Later, allowing the restoration application, it imposed the condition of the appellant’s depositing Rs. 6 lacs. The Bombay High Court has observed that the provision, as it existed then, did not empower the Tribunal to dismiss the appeal without adjudication on merits. In the same breath, it has however observed that the appellant cannot have a luxury of litigation without complying with the order of the Tribunal on the restoration application. 48. In Trivandrum Rubber Works Ltd., the Supreme Court has considered the validity of a notice under section 28 of the Customs Act. The notice was to have been served on the importer. Instead it was served on the clearing agent. The Court has held that there was no service of the WPC No.18531 of 2018 24 notice. 49. A Division Bench in KS Distilleries has observed that the courts usually do not sit in appeal over a judgment declining to exercise jurisdiction. But, on facts, it decided to interfere, despite the petitioner’s having an alternative remedy. This decision, I must say, turns on its facts: the Tribunal disposed of a batch of cases on a particular day. It dismissed one case for the counsel’s absence. But in other cases it entertained on merits, the Tribunal noted the same counsel’s presence. So the Division Bench felt justified in interfering—rightly so. At this point, the learned Senior Standing Counsel has submitted that this judgment cannot be treated as a precedent. According to him, as is evident from paragraph-2 of the judgment, the Department itself has conceded and, based on that concession, the Court disposed of the writ appeal. 50. In Steel Authority of India v Designation Authority, the Supreme Court in paragraphs 10 and 19 emphasized that unless a substantial question of law arises out of an order the Tribunal passed, the High court will not entertain an appeal under section 130 of the Act. 51. The High Court of Telangana and Andhra Pradesh in Vijaya Casting Works has repulsed the respondent’s objection that the petitioner WPC No.18531 of 2018 25 must have appealed section 35G of the Central Excise Act, 1944, rather than invoke Article 226. The order impugned in the writ petition, however, arose out of an interlocutory application for stay and waiver of pre-deposit. So the Division Bench has held that “an appeal under section 35G could only be on a question of law. When matters are decided on interlocutory applications such as applications for condonation of delay, etc., no substantial question of law may actually arise. Therefore, the remedy under Article 226 cannot be stated to have been completely kept out.” 52. And, at times, precedents pass unnoticed—even the most vigilant eye may miss them. Diligent assistance denied, the Court ends up, as it happened here, not considering a binding precedent. As a result, it may take a view contrary to that a coequal Bench earlier taken. Here, the holding of Vijaya Casting Works differs from that of Patel Engineering, an earlier judgment of the same High Court. 53. Patel Engineering, I may note, earlier considered the same provision as did Vijaya Casting Works: section 35G of Central Excise Act. The impugned order was passed on an application—and an interlocutory one, at that—to have the pre-deposit dispensed with. The Division Bench, passingly though, acknowledges that the appealable order contemplated WPC No.18531 of 2018 26 under section 35G is an order passed in appeal and not on an application against pre-deposit. 54. Then, Patel Engineering held that the provision perused, the expression employed is "every order passed in appeal". It contemplates several orders, not a singular one. According to it, even interlocutory proceedings are taken in the sweep of the order passed in appeal. So the Division Bench notices the semantic significance of "in appeal" rather than "on appeal" used in the provision. By this, the Division Bench may have meant that “on appeal”—that is, in the end—a party gets a final order, but “in appeal”—that is, during an appeal—the party gets many orders, the interlocutory ones included. 55. “Appeal”, incidentally, is an expression used differently across the Atlantic. The Americans appeal from a judgment, but the British appeal against a judgment. Then the Americans have a decision on appeal, and the British under an appeal. The American judges reverse a decision; the British allow an appeal. In American English, appeal, as a verb, is both transitive and intransitive, but in British English it is usually intransitive. In India, we are dexterous, perhaps; we use both the ways. 56. Back to brass-tacks, Patel Engineering finds it difficult to accept WPC No.18531 of 2018 27 the petitioner’s contention that section 35G does not cover the orders passed on the application for pre-deposit. That is, for Patel Engineering, interim orders also come within the sweep of section 35G. To conclude thus, it relies on Madras High Court’s M/s. Metal Weld Electrodes v. Ellan Industries.[31] 57. Section 34 of the FEMA Act confers jurisdiction on the High Court to entertain an appeal within 60 days from “any decision or order of the appellate authority”. But that appeal must be on a question of law. Interpreting section 34, Raj Kumar Shivhare has held that when law creates a statutory forum for redressal of grievance—and in a fiscal Statute, at that— the High Court should not entertain a writ petition, ignoring the statutory dispensation. If an aggrieved person can file a writ petition despite his having an efficacious remedy, that may enable him, Raj Kumar Shivhare also observes, to defeat a stature which may provide for certain conditions for filing the appeal, like the limitation, court fees, partially paying the penalty, or fulfilling some other conditions. 58. As seen above, in Raj Kumar Shivhare the Supreme Court has considered the words "any order or "decision" of the Appellate Tribunal and found them to mean "all orders". The decision was under the FEMA Act, 31 **[[]]** Judgment, 30.10.2013, in W.P. No.24615 of 2012. WPC No.18531 of 2018 28 though. But similar are the expressions used in section 35 of the FEMA Act, 1999; in section 35G of the Central Excise Act, 1944; and in section 130 of the Customs Act, 1962: “any decision or order”, “every order passed in appeal”, and again “every order passed in appeal”, respectively. 59. Thus, relying on Raj Kumar Shivhare, a Division Bench of Madras High Court, in a well-wrought judgment,[32] has held that such interpretation as given by the Supreme Court must be applied with all force to other enactments containing same or similar phraseology. So it holds that if the final order alone was intended as an order to be appealed against under subsection (1) [of section 130], then there was no need for the legislature to have the word "every". In other words, the legislature in its wisdom thought fit to give “the plurality definition to the ‘order passed in appeal’ by specifically using the word ‘every’ in that phrase. Needless to say that interim orders are also orders passed in the appeal and they are not passed outside the scope of the appeal or as independent or parallel orders.” 60. M/s. Metal Weld Electrodes emphasizes that even as against an interim order passed by the Appellate Tribunal, a remedy of filing of an appeal is always available under section 130 of the Act. > 32 **[[]]** M/s.Metal Weld Electrodes and Metro Trading Company v. CESTAT, Chennai, 20014 (2009) E.L.T. 3 (Mad.) WPC No.18531 of 2018 29 61. The Supreme Court recently had an occasion to survey the vistas of alternative remedy; in Union of India v. Shri Kant Sharma,[[][33][]] it has examined over three scores of judgments on the issue. Finally, it has summarized in paragraph 36 of the judgment: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic features of the Constitution, and any legislation cannot override or curtail the High Court’s jurisdiction under Article 226 of the Constitution of India. (ii) The High Court’s jurisdiction under Article 226 and the Supreme Court’s under Article 32 though cannot be circumscribed by any enactment, they will have due regard to the legislative intent evidenced by the Acts and would exercise their jurisdiction consistent with that legislative intent. (iii) When the law creates a statutory forum for redressal of grievances, the High Court should not entertain a writ petition, ignoring the statutory dispensation. (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (italics supplied) 62. Close at home, I may refer to this Court’s recent decisions: in M/s 33 **[[]]** (2015) 6 SCC 773 WPC No.18531 of 2018 30 Punalur Paper Mill Ltd. V Commissioner of Central Excise and Customs[[][34][]] and in Bharat Sanchar Nigam Ltd. V Commissioner[[][35][]] , the Court considered writ petitions on interlocutory orders. Incidentally, in both the cases, the issue was the restoration of appeal. This Court, per learned Single Judges, has held that even as for restoring the appeals (that is, interlocutory orders), the petitioners could have the remedy of statutory appeal under section 130., but not the writ petition. ## What has Indus impugned? 63. Ext.P3 is the order-in-original. Indus questioned this order in appeal, CA No.C/21292 of 2014, before the CESTAT. Ext.P4 is the order the Tribunal passed on Indus’s stay petition: it directed Indus to deposit ten crore rupees as a precondition to have the appeal entertained. Indus could not comply with the direction; that is, depositing ten crore rupees in 12 weeks. So the Tribunal dismissed the appeal for non-compliance. Then, Indus filed a restoration petition before the Tribunal, which dismissed it, too, through the Ext.P12 order, dt.05.02.2018. 64. I reckon Indus made a common cause with eleven other courier agencies; they all seem to have a similar grievance. Of the 12 courier > 34 **[[]]** decided on 13[th] February 2014 35 **[[]]** decided on 30[th] July 2013 WPC No.18531 of 2018 31 services, two approached this Court at the stage of show cause, filed writ petitions, and obtained a stay. Others approached the CESTAT. Eight had their cases remanded to the primary authority. One courier agency has still got its case pending before the Tribunal but seems to have suffered no conditional order of pre-deposit. It is said to enjoy a stay, too. Only Indus faced the problem of precondition. Equity may demand that Indus may have its case adjudicated on merits. But judicial discipline demands scrupulous compliance with the precedential dictate. 65. Beginning from the Supreme Court’s Raj Kumar Shivhare to this Court’s Punalur Paper Mill Ltd. and Bharat Sanchar Nigam Ltd., the judicial dictum is consistent: an interlocutory order, too, comes within the sweep of section 130 of the Act. That accepted, I must refuse to entertain this writ petition; I do so—but only on this technicality and nothing more. The petitioner has its rights intact and may approach the appellate Bench of this Court to plead its case. I dismiss the writ petition. No order on costs. **Sd/-** **DAMA SESHADRI NAIDU** **JUDGE** WPC No.18531 of 2018 32 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 15/7/2013 ISSUED BY CHIEF COMMISSIONER EXHIBIT P2 TRUE COPY OF THE ORDER DATED 30/7/2015 ISSUED BY COMMISSIONER OF CUSTOMS EXHIBIT P3 TRUE COPY OF THE ORDER DATED-IN-ORIGINAL NO.TVM-EXCUS-000-COM-12-13-14 DATED 2/1/14 EXHIBIT P4 TRUE COPY OF THE MISC ORDER NO. 21470/2014 DATED 22/5/14. EXHIBIT P5 TRUE COPY OF THE FINAL ORDER NO.2147021472/2014 DATED 19/8/14 ISSUED BY HON'BLE TRIBUNAL EXHIBIT P6 TRUE COPY OF THE MISC. ORDER NO. 22080/2014 DATED 19/8/14. EXHIBIT P7 TRUE COPY OF THE FINAL ORDER NO. 2032320324/2015 DATED 12/2/2015 EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE HIGH COURT DATED 1/6/15 IN CUS. APPEAL NO. 1/2015 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 5/12/14 IN WRIT PETITION NOS. 30237/2013 EXHIBIT P10 TRUE COPY OF THE FINAL ORDER NO. 20023/16 DATED 12/1/16 EXHIBIT P11 TRUE COPY OF THE RESTORATION PETITION FILED UNDER SECTION 129 OF CUSTOMS ACT. 1982 DATED 16/3/16. EXHIBIT P12 TRUE COPY OF THE MISC ORDER NO. 20007/2018 DATED 5/2/18**