Case: Collector Of Customs &amp; Excise,Cochin &amp; Ors Vs. A. S. Bava

2. The relevant facts are as follows: M/s. A. S. Bava, hereinafter referred to as the petitioner, is a firm of dealers in Tobacco. By two orders of adjudication, dated March 31, 1963, the Assistant Collector of Customs demanded the payment of duty under R. 40 of the Central Excise and Salt Rules, 1944. The petitioner filed appeals against these orders on or about July 4, 1963. to the Collector of Customs and Central Excise. The petitioner made a representation on October 3, 1963, requesting that it may not be required to deposit the duty demanded pending appeal. The Collector, by letter, dated January 9, 1964, rejected the representation and requested the petitioner to deposit the duty within 15 days of the receipt of the letter. On the petitioner failing to deposit the amount, the appeals were dismissed on December 4, 1984. Thereupon, as already stated, the petitioner filed two petitions under Art. 226 and the petitions having been allowed, and the appellant having obtained special leave, the appeals are now before us. The High Court allowed the petitions on the ground that the notification No. 68/63 dated May 4, 1963, issued under S. 12 of the Excises and Salt Act, 1944, hereinafter referred to as the Excise Act, declaring that S. 129 ofthe Customs Act, 1962, relating to matters specified therein shall be applicable in regard to like matters in respect of the duties imposed by S. 3 of the Excise Act was in excess of the powers conferred under S. 12 of the Excise Act. The High Court also rejected the argument of the Collector of Customs and Central Excise that the petitioner having invoked S. 129 ofthe Customs Act, 1962, in the appeals preferred by it by praying for the dispensation of deposit, was precluded from proceeding under Art. 226 of the Constitution.

Reasoning: 4. There is no force in the first point. First, the point was not taken in the High Court. Secondly, it is settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Art. 226. Moreover, the petitioner had alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals as the notification dated May 4. 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances it was not necessary for the petitioner to have filed revisions.5. There is equally no force in the second point. If the petitioner had not applied for dispensation of the deposit of the duty, the appellants would have contended that the petitions under Art. 226 were not maintainable. Moreover, as already stated, the petitions raised a question of jurisdiction.As we have already said, the appeals are filed under S. 35 of the Excise Act. Section 129 of the Customs Act debars the hearing of them unless the duty or penalty is paid. This, it seems to us, is not procedure relating to appeals.These observations are fully applicable in the present case. Section 35 of the Excise Act gave a right of appeal, but S. 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within S. 12 of the Excise Act.