TaxTMI 
TaxTMI 
2018 (10) TMI 1159
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....ry 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 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 respondent- Commissioner, 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 aspec....
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.... 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 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 ....
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....175 (Bom.), and Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd. 1999(106) E.L.T. 9(S.C.) 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 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....
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....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 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 secti....
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....o 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 agai....
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.... the High Court formulates an issue, as it 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 remedy, as held in Whirlpool Corp....
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....nate 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. 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 p....
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....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 established, and so dismissed the writ petition. 45. The Supreme Court in Mani Subrat Jain v. State of Haryana AIR 1977 SC 276 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. An....
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....dy. 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 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 appl....
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....ds it difficult to accept 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. Judgment, 30.10.2013, in W.P. No.24615 of 2012 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 Sh....
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....e 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 Punalur Paper Mill Ltd. V Commissioner of Central Excise and Customs decided on 13th February 2014 and in Bharat Sanchar Nigam Ltd. V Commissioner decided on 30th July 2013, 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 thi....