1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1426 OF 2010. M/s. Samruddhi Industries -: versus :- Hon’ble Customs and another. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 16, 2010. Heard Shri Natrajan, learned counsel (from Chennai) for the petitioner and Shri S.K. Mishra, learned A.S.G.I. for respondents. On last occasion learned A.S.G.I. on behalf of respondents had raised objection to the maintainability of the Writ Petition by pointing out that the provisions of Section 35G of the Central Excise Act, 1944 contending that alternate remedy of filing an appeal is available. The facts in the matter show that after an earlier approach to this Court in Writ Petition assailing an order under Section 35F refusing to waive pre-deposit the petitioners again moved the Appellate Tribunal for its modification and sought to furnish Bank Guarantee instead of depositing the amount. That application has been rejected and that rejection is now assailed in the present Writ Petition. Effort of petitioner is to persuade this Court to accept the Bank Guarantee in place of pre-deposit as 2 compliance with Section 35F. In view of the preliminary objection raised, the learned counsel for petitioner states that the view of Division Bench relied upon by the respondents as per its judgment dated 25.03.2010 is not applicable in present matter, because here the petitioners do not dispute that the order passed on an application under Section 35F, is an order in appeal under Section 35G. He contends that because of this acceptance the said judgment loose its efficacy. Reliance is being placed upon the Division Bench judgment of Delhi High Court reported at 2009 (236) E.L.T. 12 (Del.) (Union of India .vrs. Classic Credit Ltd.) to urge that as in the matter of challenge to an order under section 35F, no substantial questions of law arise, the appellate remedy under section 35G is not at all available. Learned counsel states that as no substantial question of law can be framed to challenge an order under Section 35F, which is basically the discretion of the Tribunal, the provisions of Section 35G are not attracted at all. In the alternative and without prejudice to this, reliance is being placed upon the judgment of Hon'ble Apex Court reported at 1983 [13] E.L.T. 1327 (S.C.) (A.V. Venkateshwaran, Collector of Customs, Bombay .brs. Ramchand Shobhraj Wadhwani and another) to urge that when there is a question of jurisdiction or when the principles of natural justice are violated, alternate remedy is not absolute bar and this Court can always interfere. Learned counsel contends that by offering Bank guarantee the petitioner are complying with the provisions of Section 35F and hence, the refusal to modify its earlier order 3 by the Appellate Tribunal is an error of jurisdiction, which can be taken note of and interfered with by this Court in writ jurisdiction. Learned A.S.G.I. on the other hand relies upon the Division Bench judgment of this Court to urge that once it is held by the Division Bench of this Court that Writ Petition is not maintainable, this Court as a Single Judge cannot overlook it and also cannot distinguish it. He points out that the view taken by the Delhi High Court is not proper because only interference is contemplated when a substantial question of law arise. Having heard the respective counsel, I find that the Division Bench of this Court has treated order under Section 35F, as an order in appeal and therefore, has held that challenge to such order has to be in appeal under section 35G. In view of this clear finding by the Division Bench, it is apparent that this Court cannot accept the contentions that while challenging such order under Section 35 F, no substantial question of law arise and hence writ jurisdiction is the only remedy available to the petitioner. In view of this, I have to uphold the preliminary objection as raised by the learned ASGI. Writ Petition is therefore dismissed as not maintainable. No costs. JUDGE Rgd.