ORDER G.C. Bharuka, J.
1. The petitioner is a limited company. It is engaged in the manufacture, sale and marketing of sprinkler irrigation system including pumps and motors which are used in the agricultural fields for irrigational purposes. It has filed the present writ petition, inter alia, for quashing of the order dated 20-01-1997 passed by the respondent-Customs, Excise and Gold (Control) Appellate Tribunal passed in Appeal No. E/1031/88-81 Annexure-A under Section 35-C of the Central Excises and Salt Act, 1944 (in short 'the Act').
2. One of the questions arising out of the Tribunal's order is as to whether it was right in holding that pumps on base frames was an identifiable product known as 'trailer' and therefore classifiable under Erstwhile Tariff Item 34 and chapter sub-heading 87.16 of the Central Excise Tariff Act, 1985?
3. It has been admitted at the bar by Sri G. Chander Kumar, learned Senior Counsel appearing for the petitioner, as also Mr. Ashok Harnahalli, learned Senior Central Government Standing Counsel for the respondents that the said question pertains to rate of excise duty payable under the Act and therefore as against the impugned order of the Tribunal an appeal can he only before the Supreme Court under Section 35L of the Act. It reads as under:
"Section 35-L. Appeal to the Supreme Court.--An appeal shall lie to the Supreme Court from.-
(a) xxx xxx xxx.
(b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment".
4. From the reading of the above provisions contained in Section 35-L(b) of the Act, it seems clear to us that even if one of the questions raised before the Tribunal for determination relate to a rate of duty of excise or to the value of goods for purposes of assessment, then the remedy by way of appeal against the order of the Tribunal can be only before the Supreme Court and such question cannot be subjected to the advisory jurisdiction of the High Court. Keeping in view the specific bar contained in Section 35-G of the Act which specifically provides that on the said questions pertaining to rate of duty and value of goods neither any reference can be made by the Tribunal nor can be called for by the High Court.
5. Despite the said provisions, the present writ petition has been filed assailing the order of the Tribunal, referred to above, on the grounds that (i) in view of the judgment of the Supreme Court in the case of L. Chandra Kumar v Union of India and Others , no appeal can be preferred before the Supreme Court even under Section 35-L of the Act unless the person exhausts his remedy before the High Court under Articles 226 and 227 of the Constitution of India and (ii) the cost of litigation before the Supreme Court in preferring an appeal as compared to the relief sought for is so high that insistence for filing of an appeal before the Supreme Court will virtually amount to negation of the right of appeal itself.
6. We have heard Sri G. Chander Kumar, learned Senior Counsel for the petitioner, on the said issues which pertain to maintainability of the present writ petition itself as also Mr. Ashok Harnahalli, learned Senior Central Government Standing Counsel for the respondents. By referring to various paragraphs in the case of L. Chandra Kumar, supra, it has been stated on behalf of the petitioner that the 2nd respondent-Appellate Tribunal has been set up only under article 323b of the constitution and therefore as per the law laid down by the Supreme Court, this Court has to examine the validity of the impugned appellate order on merits as an Appellate Authority though the application is only under Articles 226 and 227 of the Constitution. Alternatively, even if there is an appellate remedy available it is not efficacious. To counter the said ground, statement of objections has been filed on behalf of the respondents. By referring to the various statements made therein and certain legislative developments regarding Constitution of the Appellate Tribunal as also by relying on an order passed by the Delhi High Court in the case of Shalimar Rubber Industries, it has been submitted that the petitioner company is bound to avail its remedy by way of appeal only to the Supreme Court and the present writ petition cannot be entertained since no grounds of procedural infirmity or jurisdiction has been raised to assail the impugned appellate order.
7. Before proceeding to discuss the rival contentions, we may notice two important aspects which are not at issue between the parties. These are:
(i) that the impugned order of the Tribunal is not assailable or is to be subjected to judicial review under the writ jurisdiction either on the ground of procedural infirmity or for want of jurisdiction of any authority including the Tribunal, and
(ii) under the provisions of the Act the jurisdiction of the High Court of judicial review under Articles 226 and 227 of the Constitution of India has not been barred by making any specific provision under the Act in terms of Article 323-B(3)(d) of the Constitution.
8. To substantiate his submission Sri Chander Kumar has brought to our notice the observations of the Supreme Court as made in Paragraph 25 in L. Chandra Kumar's case, supra, which is to the following effect.-
"In R.K. Jain v Union of India, a Division Bench of this Court consisting of three of us Ahmadi, C.J., Punchhi and Ramaswamy, JJ., had an occasion to deal with complaints concerning the functioning of the Customs, Excise and Gold Contnol Appellate Tribunal, which was set up by exercising the power conferred by Article 323B. ..."
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9. He then refers to Paragraph 91 of the judgment which is to the following effects.-
"It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under
Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under
Article 227 of the Constitution. In R.K. Jain's case, supra, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decision of Tribunals, whether created pursuant to
Article 323-A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdictions under Articles 226 and 227 of the High Court within whose territorial jurisdiction the particular Tribunal falls"
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10. According to him, a composite reading of the said observations and directions of the Supreme Court is that since the Appellate Tribunal has been held as the one constituted pursuant to article 323b of the constitution, therefore, irrespective of the fact whether there is a provision in the Act ousting the jurisdiction of the High Court or not or that an appeal under the Act has been provided only to the Supreme Court, still the correctness of order passed by the Tribunal on questions pertaining to the rate of excise duty or value of the goods has to be examined by the High Court under Articles 226 and 227 of the Constitution on merits as an Appellate Authority.
11. On the other hand, Mr. Ashok Harnahalli, learned Senior Central Government Standing Counsel, has submitted that the question as to whether despite the specific legislative mandate providing for statutory appeal only to the Supreme Court, an aggrieved person has still to approach the High Court at the first instance under Articles 226 and 227 of the Constitution was not at all in issue before the Supreme Court. Therefore, the observations of the Supreme Court sought to be taken benefit of by the appellant should not be taken as a law declared in the context of the provisions of the Act. He brought to our notice that the issues raised before the Supreme Court have been formulated in first paragraph of the judgment itself and the material question for the present purpose is question No. 1 namely:--
(i) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of Article 323-A or by sub-clause (d) of clause (3) of Article 323B of the Constitution, to totally exclude the jurisdiction of 'all Courts' except that of the Supreme Court under Article 136 in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226 and 227 and on the Supreme Court under Article 32 of the Constitution?
12. It has been submitted that in the context of the said question the Supreme Court considered various judgments and ultimately held that the jurisdiction conferred upon the High Court under Article 226 or 227 of the Constitution is part of the inviolable basic structure of the Constitution and, therefore, the same cannot be ousted by making any statutory provision in this regard pursuant to the Constitutional provisions contained in Article 323-A or 323B of the Constitution. He also brought to our notice an Act passed by the parliament being the Customs and Excise Revenues Appellate Tribunal Act, 1986, by Section 26 whereof the jurisdiction of the High Court was sought to be excluded. But it has been stated that the provisions of the said Act has not been brought into force so far.
13. Keeping in view the said aspects, in our opinion, since there is no provision in the Act ousting the jurisdiction of this Court of judicial review under Article 226 or 227 of the Constitution, the question raised before the Supreme Court cannot be said to be one concerning the appellate Tribunal constituted under the Act. Therefore, even without the said pronouncement of the Supreme Court in Chandra Kumar's case, supra, the High Court always was possessed of the power of the judicial review under Article 226 or 227 of the Constitution against the orders passed by the Appellate Tribunal. But by this time it is too well-settled that the writ jurisdiction can be exercised by the High Court only to ensure the procedural fairness and not to sit in appeal over an order of the Tribunal --Tata Cellular v Union of India and Haryana Urban Development Auhority and Another v Roochira Ceramics and Another. Therefore, in our opinion, this Court cannot entertain the present writ petition on merits as sought to be suggested on behalf of the petitioner.
14. It is further of importance to note that the Parliament in its wisdom has provided an appeal to the highest Court of the land by incorporating Section 35-L in the Act. The validity of the said provision has neither been assailed nor in our opinion, it is assailable on any valid ground. Therefore, admittedly the appellant has a right of appeal to the Supreme Court. Nonetheless, the appellant by filing an affidavit has stated that keeping in view the cost factor involved in preferring such appeal we should take the view that the said remedy has become nugatory and, therefore, this Court should interfere with the impugned appellate order on merits. To substantiate the said ground, certain statement of facts have been made by the appellant in Para 5 of the I.A. filed today. It reads like this.-
"As submitted above, in the present case the duty involved is to the extent of Rs. 1,76,056.41. The expenses involved in prosecuting the appeal before the Hon'ble Supreme Court is highly cost effective in the sense that the Advocate on record has to be engaged which costs about Rs. 15,000/- to 20,000/- per case. In addition Senior Counsel to argue the appeal is also required to be engaged for which the fees per day charges vary between Rs. 25,0007- to Rs. 40,000/- depending upon the Senior Advocate. Minimum of two to three hearings apart from preliminary hearing are involved. Thus, it will be seen that the cost of litigation in his case would be equivalent to the demand of duty of excise itself. Hence, the remedy by way of appeal to Supreme Court is highly inefficacious which virtually amounts to the negation of right of appeal itself. High cost effect of perusing the remedy before the Supreme Court is also taken note of by the Hon'ble Supreme Court in Para 88 of the judgment"
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15. We do not propose to comment on the statements made in the above said paragraph because if the said statements are to be taken note of as a fact and if for that reason it has to be held that remedy by way of appeal to the Supreme Court even for an economically viable and profit making company like the present petitioner, has become nugatory, then in our opinion, it is not only indicative of the failure of the Indian judicial system, but also amounts to denial of the constitutional rights of the citizens of India as enshrined in our Constitution. But we do not propose to deal with these aspects any further since in our opinion, it is high time that these aspects should be taken note of and attended to with all seriousness at the appropriate levels so that the judicial system may keep inspiring confidence in the seekers of justice.
16. We may also notice here that under somewhat similar circumstances the Delhi High Court in the case of Shalimar Rubber Industries, supra:
In view of these alternative remedies, we do not think that it is a fit case where we should exercise our jurisdiction under
Article 226 of the Constitution. Mr. Chandrasekharan, learned Counsel for the petitioner relies upon a recent decision of the Supreme Court in the case of L. Chandra Kumar, supra and in particular Paragraphs 91 and 92 of the said decision in support of the contention that now appeal under Section 35-L does not lie and only a writ petition under
Article 226 of the Constitution can be filed. We do not agree. In our opinion, there is substance in the submission of Mr. Misra, learned Counsel appearing for the Government that the ratio of Chandra Kumar's case, is not to take away right of appeal provided under Section 35-L of the Act. In this view, we decline to entertain the writ petition and the same is dismissed
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17. For the aforesaid reasons, in our opinion, since no good ground has been made out for any review under the writ jurisdiction and further that the petitioner has a remedy by way of appeal to the Supreme Court, we decline to entertain the present writ petition. It is accordingly dismissed. All the rights and contentions of the parties on merits will remain open.