TMI Blog2008 (7) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-condition of payment of fifty percent of the differential duty in a sum of Rs.37,50,000/- for setting aside the order in original dated 24.7.1997 of the first respondent is put in issue in this appeal. 2. The facts of the case are as follows: The appellant imported two second hand air separation plant of US origin and one Deoxo Argon Purifier of the year 1965 and 1968 respectively vide Bill of Entry Nos.20821 dated 24.5.1994, 22225 dated 1.7.1994 and 20282 dated 23.6.1994 respectively. The appellant sought the assessment of the consignment under Notification Nos.90/94 and 91/94. The bills of entry were assessed provisionally under Section 18 of the Customs Act, 1962 and were cleared out of customs. It appears that on the basis of information supplied by the Directorate of Revenue Intelligence, a show cause notice was issued to the appellant on 31.10.1996 and the Commissioner of Customs, Chennai by his order in original imposed customs duty of Rs.73,23,578/- by enhancing the value of consignment to Rs.3,47,37,377/-. He ordered for the confiscation of the goods under Section 111(m) of the Customs Act, 1962 but allowed to be redeemed on payment of fine of Rs.10 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 129B of the Customs Act. Having reached the conclusion that the order in original requires to be set aside and remanded back to the original authority for de novo consideration, the second respondent can only give direction as stated above how to further proceed with the enquiry and imposing condition precedent for setting aside the order is not in accordance with the statutory provision. 5. On the other hand, the learned counsel appearing for the Department contended that the writ petition itself is not maintainable as during the relevant period, under Section 130 of the Customs Act, if the importer has not accepted the order of the CEGAT, he can request the CEGAT to make a reference to the High Court by raising a question of law. Without following statutory remedy, filing a writ petition under Article 226 of the Constitution of India is nothing but short-circuiting the statutory remedy, which has been deprecated by this Court as well as the Supreme Court in several cases. He relied on a decision of the Division Bench of this Court in the case of M/s. Nivaram Pharma Private Limited Represented by its Director Sardarmal M.Chordia, Madras v. The Customs, Excise an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach the statutory authorities, where ever there existed disputed question of fact so that the authority empowered to decide the factual issue in performing the duty could decide the same. The High Court while exercising the power under Article 226 perform the functions of the judicial review of the orders passed by the lower authorities. It is true, in the cited case, the Division Bench of this Court has held as follows: "...4. We are surprised that this writ petition was entertained at all. There was a clear alternative remedy against the order of the CEGAT dated 9.7.1997 by means of filing a Reference Application before the CEGAT under Sec.35-G(1) of the Central Excise Act (hereinafter referred to as the Act) and if that application was rejected by the CEGAT there was a second alternative remedy of approaching this Court under Sec.35-G(3) of the Act seeking a direction to the CEGAT to make a reference to this Court. 5. It is well settled by a series of decisions of the Supreme Court that particularly tax matters there should be no short circuiting of the statutory remedies. ...." 11. There is another line of judgments of Supreme Court to the effect that when there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (1969) 1 SCC 110. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226, K.S. Rashed And Sen v. Income Tax Investigation Commission, (AIR 1954 SC 207). Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 12. Further, the power vested with the High Court under Article 226 of the Constitution to exercise judicial superintendence over the decisions of all Courts and tribunals is part of basic structure of the Constitution. Such an inviolable jurisdiction of the Court cannot be said to be impinged because of availability of alternate remedy. (vide Seven Judges Judgment of the Supreme Court in L. Chandra Kumar case (1997(3) SCC 261). 13. In view of the above categorical enunciation of law by the Supreme Court and having regard to the issue to be resolved in this case, which is pure and simple interpretation of the scope of the statuary provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e novo adjudication as extracted in paragraph No.3 above. But the imposition of pre-condition for setting aside the order i.e., directing the appellant to deposit 50 percent of the differential value on or before particular date is, in our view, not in accordance with the statutory provision. The statutory provision does not empower the Tribunal to impose such a condition for setting aside the order appealed and remit back to the adjudicating authority. It is needless to say that the Tribunal is a creation of the statute and it has to perform its function in accordance with the power conferred on it. Giving direction to the original authority while remitting back the matter is one thing to which it is empowered but imposing a pre-condition is a different thing with which no power has been vested with the Tribunal. 17. There is a ocean of difference between the terminology "direction" to the lower authorities to do de novo adjudication proceedings in a particular way and the terminology "pre-condition" imposing for setting aside the order appealed. The direction means giving certain guidance or command. The condition is a thing on whose fulfillment another thing or act is made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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