Home Case Index All Cases Customs Customs + HC Customs - 2014 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (12) TMI 269 - HC - CustomsPower of tribunal to dismiss the appeal for non compliance of order of pre-deposit - Maintainability of appeal before the HC for purposes of assessment allowing or refusing the dispensation of deposit under Section 129E - appeal against the stay order of tribunal - Question having a relation to the rate of duty of customs or to the value of goods - Held that:- It is further held where the alternative remedy by way of an appeal is uncertain and dependent upon certain conditions, the writ jurisdiction can be invoked even in absence of involvement of substantial question of law - power under Article 226 can be exercised even there being an alternative remedy but to be considered as a rule of self-imposed limitation. It is essentially a rule of policy, convenience, a discretion and not a rule of law. Therefore, the writ petition cannot be said to be non-maintainable merely because an alternative remedy is provided under the statute if the case comes within the exceptions as laid down in the above noted reports. The writ jurisdiction can certainly be invoked even if there is an existence of an alternative remedy by way of an appeal if on the face of it, the order appears to have been passed de hors the statute. The power of an appeal before the Appellate Tribunal could be traced from Section 129A of the Customs Act, 1962 which does not contain any provision either to be proceeded by a deposit of the duty and the penalty imposed by the adjudicating authority as a condition precedent or in default of such deposit, the appeal would be liable to be dismissed. In absence of the specific provisions, the authorities cannot innovate the mechanism for dismissal thereof at any stage of the said appeal. The appellate tribunal could very well proceed to decide the appeal and simultaneously therewith, the adjudicating authority can take recourse to the provision of the statute for recovery thereof. The statutory authorities are bound to act within the precincts of the statute and cannot travel beyond it. Power of tribunal to dismiss the appeal for non-deposit of pre-deposit amount as ordered - Held that:- By imposing the condition that if the deposit is not made, the appeal would attract dismissal, such course is neither contemplated under the Customs Act not could confer power upon the statutory authority whose genesis whereof flows therefrom. - the order dated 21-2-2013 by which the appeal is dismissed by the Appellate Tribunal is illegal and beyond the powers conferred under the Customs Act. - appeal restored before the tribunal - decided in favor of assessee.
|