Basheer Ahammed vs Collector of Cus. and C. Ex.

K.P. Radhakrishna Menon, J.—Sri C. Kochunni Nair, Additional Central Government Standing Counsel took notice on behalf of respondents 1 to 3. The learned Government Pleader took notice on behalf of the 4th respondent.

Exts, P2, P3 and P5 are under challenge. Ext. P2 is an order of the first respondent, passed under Sections 111(d), 112(b)(1) and 119 of the Customs Act, 1962, for short, the Act, confiscating bundles of smuggled goods, 58 bags of rice and imposing a penalty of Rs. 1 lakh on the petitioner firm, a penalty of Rs. 1,00,000/- on Sri K.A. Ahmed and a penalty of Rs. 1 lakh on Sri K.P. Hussain.

Ext. P3 is the order of the Customs Appellate Tribunal dismissing the appeal [Appeal No. CD(MAS) 146/80] thereby confirming Ext. P2. The petitioner then moved the Appellate Tribunal get the questions of law arising out of the appellate order, referred to the High Court, u/s 130(1). This application was rejected. The petitioner thereupon moved this court under Sub-section (3) of Section 130 for an order directing the Appellate Tribunal to state the case and refer the questions to the High. Court. A Division Bench of this court by Ext. P4 judgment dismissed the said application. The petitioner thereafter has moved this Original Petition for the following reliefs:

(1) A writ of certiorari or any appropriate writ order or direction quashing Exts. P2, P3 and P5.

(2) to grant such other reliefs prayed for from time to time which this Hon''ble Court deems fit.

(3) to allow cost of this proceeding.

The counsel for the Department submits that the Original Petition is not maintainable in view of the fact that the order of the Appellate Tribunal has become final. It is relevant in this context to note, it is further submitted, that Ext. P2 order of the Collector of Customs has got merged in the appellate order which has to be treated as finally disposing of the disputes in view of Sub-section (4) of Section 129B. See Sub-section 4 of Section 129B :

"129B. - Orders of Appellate Tribunal.

(4) Save as otherwise provided in Section 130 or Section 130E, orders passed by the Appellate Tribunal on appeal shall be final."

The counsel for the petitioner however contends that the finality attached to the order of the Appellate Tribunal shall not stand in the way of his right to move the extraordinary jurisdiction of this Court under Article 226 of the Constitution for appropriate reliefs. If the argument of the counsel for the Department is accepted, it comes to this namely, that Sub-section (4) of Section 129B would virtually be controlling the extraordinary powers of the High Court recognised under Article 226 of the Constitution, the counsel further submitted.

The question thus arising for consideration is: Is the Original Petition under Article 226 of the Constitution maintainable in view of the provisions contained under Sub-section (4) of Section 129B? The answer depends upon the construction of Article 226 and the relevant Sections of the Customs Act namely, 129B(4), 130 and 130E. Sub-section (4) of Section 129E, as already noted, makes the order passed by the Tribunal on appeal final subject to Sections 130 and 130E of the Act. Section 130 enables a party aggrieved by the order of the Appellate Tribunal to have the questions of law, arising out of the appellate order, referred to this court for opinion. It is not as if he has no other remedy for redressal of his grievances, in case the said application happens to be dismissed. He can file an appeal to the Supreme Court from the judgment of the High Court delivered on a reference made u/s 130 provided, on his own motion or on an oral application made by or on behalf of the aggrieved party immediately after the passing of the judgment, the High Court certifies it to be a fit one for appeal to Supreme Court. The scheme of the Act in regard to confiscation of goods improperly imported or improperly imported and secreted, but seized on search of premises where they are stocked, is such that all questions of fact are to be decided by Customs authorities and on question of law arising out of the decision of the Appellate Tribunal (the orders of the Customs authorities get merged in the order of Appellate Tribunal which also is a fact finding body) the opinion of the High Court requires to be obtained. Against the judgment of the High Court, the party aggrieved can file an appeal before the Supreme Court on the High Court certifying it to be a fit case for appeal to the Supreme Court. It is thus clear that the remedy provided to the petitioner is not only not onerous but it in fact is efficacious. In such cases the High Court will not entertain a petition for a writ under Article 226. It should in this connection be remembered that resort to this jurisdiction under Article 226 of the Constitution is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statutes. I am fortified in this view by the decision of the Supreme Court in Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, . However I shall not be understood as saying that relief under Article 226 can be barred by statutes. It is a principle well recognised that the power under Article 226 cannot be taken away or curtailed by any legislation short of amendment of Constitution. To put it differently the High Court shall be entitled to exercise the power under Article 226 free from the fetters imposed directly or indirectly; for instance by making an order or decision of an administrative authority or inferior Tribunal final; by preventing the High Court from determining whether the provisions of a statute have been complied with or barring particular reliefs other than those provided by the Act. Certain other exceptional circumstances warranting interference by the High Court under Article 226 recognised by judicial pronouncements are, the decision is mala fide, the decision is prompted by extraneous considerations, the decision is made in contravention of principles of natural justice or any constitutional provisions.

On going through the facts discussed in the orders under challenge it could be inferred without fear or contradiction that the decisions/orders cannot be said to be that of an administrative authority or inferior Tribunal; or (sic) for that matter could they be said to be orders passed in violation of principles of natural justice or provisions of the Constitution, etc. The orders of the Customs authorities would get merged in the order of the Appellate Tribunal which becomes final subject to the proceeding, the aggrieved party may take u/s 130 and 130E.

In cases like this it is all the more so because the remedy provided for under the statute is really efficacious; efficacious because want of compliance with the provisions of the Act, the provisions of the Constitution, natural justice, etc., in passing the impugned orders can be brought before the High Court by initiating proceedings u/s 130. The High Court under such circumstances shall desist from entertaining petition for writ under Article 226 of the Constitution.

Applying this principle to the facts of the case it should be observed that the petition is not sustainable in law.

The learned counsel for the petitioner nonetheless, relying on a decision of the Supreme Court in The VIth Income Tax Officer, City Circle II-A, Bangalore Vs. K.Y. Pillaiah and Sons, contended that the above provisions of the Act do not in any way interfere with his right to move this Court under Article 226 of the Constitution to challenge the appellate order. He made particular reference to the following observation of the Supreme Court:

"It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore. That question was not pressed before the High Court, and it must be deemed to have been answered against the respondents. That question could not thereafter be reagitated by the respondents in a petition for the issue of a writ under Article 226 of the Constitution."

On going through the facts of the case, it could be seen that the Supreme Court was considering a question as to the validity of a notice u/s 34 of the Mysore Income Tax Act seeking re-opening of the assessment. Challenging the said proceedings, the assessee filed a writ petition. In that writ petition, the assessee wanted to resurrect the point which he had not pressed in the reference application before the High Court. The Supreme Court said that the question which had become final cannot be re-agitated in a proceeding under Article 226 of the Constitution. This principle has no application here.

From the discussion above, it is clear that the Original Petition is not maintainable. Accordingly the same is dismissed. No costs.