Judgment:
ORDER
1. The first of the writ petitions is to quash an order of the Assistant Collector of Customs dated 14-7-1992 refixing the value of Dathatsu Diesel engines with gear box. Originally, the value was fixed at Rs. 7000/- per engine and Rs. 500/- per gear box. The successor Assistant Collector revised the value taking the view that the relevant materials had not been taken into account and the consignment had not been examined fully. He has passed an order on 14-7-1992. Admittedly, an appeal lies to the Collector (Appeals), against the said order. In the affidavit filed an support of the writ petition it is stated that the right of appeal is purely illusory and as the order of adjudication is vitiated by errors apparent on the fact of the record, it can be challenged in this Court under Article 226 of the Constitution of India.
2. In the course of arguments, it was contended that the Assistant Collector had no jurisdiction to pass an order revising the value fixed by his predecessor and, therefore, this Court should interfere. I am not inclined to interfere in this matter, because it is not stated in the affidavit as to how the right of appeal is illusory. Merely stating that the right of appeal is illusory will not enable the petitioner to approach this Court. It is not even stated in the affidavit that if such an appeal is preferred before the authority concerned, it would not be efficacious or that it would take such along time as to cause great prejudice to the petitioner. In the absence of such averments, the jurisdiction of this Court cannot be invoked as against the order, which is appealable.
3. In the second writ petition, the order challenged is a consequential order or confiscation made under Section 128 of the Customs Act. It is passed on 16-7-1992. That order is also appealable. The main ground of attack is that the order is one of absolute confiscation and hence the Assistant Collector ought to have exercised his discretion as to whether the goods could be redeemed on payment. According to learned counsel an opportunity ought to have been given to the petitioner to pay the amount and redeem the goods before making an order of absolute confiscation. It is contended that the order suffers from errors apparent on the face of record and, therefore, that should be interfered with.
4. When the order is appealable, it is open to the petitioners to urge all his grounds before the Appellate Authority. The following rulings are cited by learned counsel in support of his contention that before passing an order under Section 125 of the Customs Act, the officer in question should exercise his discretion as to whether the goods should be released on payment of money. In In re. S. S. Kothari [1987 (3) E.L.T. 156 = (1985) 6 ECC 81], it was held by the Calcutta High Court that the power to give option to the importer to realise the prohibited goods upon payment of fine is a power coupled with duty and in any event it should be exercised fairly and reasonably and not arbitrarily and capriciously.
5. In Hargovind Das K. Joshi v. Collector of Customs : 1992(61)ELT172(SC) , the Supreme Court held that on the facts of the case the order directing confiscation of the consignment was unassailable and the order levying penalty was also justified. However, the Supreme Court remitted the matter to the Collector of Customs for the limited purpose and to the limited extent as to whether or not to give an option to the appellant to redeem the confiscated goods on payment of such fine as may be considered appropriate by him in lieu of confiscation.
6. In N. Jayathilakan v. Addl. Secretary : 1987(31)ELT47(Mad) , this Court held that when the goods are not prohibited items, the second limb of the Section will apply and the authority ought to have given the option to the party before ordering confiscation of goods and remanded the matter for giving such option.
7. In Ghanshyam Chejra v. Collector of Customs : 1993ECR68(Calcutta) , the Calcutta High Court held that alternative remedy is not a complete bar to the maintainability of the writ petition. In that case, it was held that the Collector had passed an order which was highly prejudicial to the petitioner and if the order had to be challenged in the appropriate forum, the petitioner cannot have the desired relief for long time to come.
8. In the present case, I have already pointed out that there is no whisper in the affidavit that if the remedy of filing the appeal is availed by the petitioner, he will not be able to get the relief for a long time to come. Nor has the petitioner made out as to how the right of appeal is illusory.
9. Reliance has been placed on the decision in East India Commercial Co. Ltd. v. Collector of Customs : 1983(13)ELT1342(SC) . The Supreme Court observed that when a Tribunal over which a High Court has superintendence, ignores the law declared by that Court and starts proceedings in direct violation of such law, a writ of prohibition shall issue. The observations of the Supreme Court have no bearing on the present case. This is a case in which an order had been passed by the Assistant Collector taking a particular view on the facts of the case. If according to him the facts of the case do not warrant giving an option to the petitioner, then it is for the appellate authority to decide whether on the facts of the case the discretion should have been exercised in favour of the petitioner and an option should have been given to him to redeem the goods. That is a question which can be decided only by the appellate authority and not under Article 226 of the Constitution of India.
10. In the circumstances, I am of the view that the remedy of the petitioner is to file appeals before the appellate authority and seek appropriate reliefs.
11. The writ petitions are dismissed.
12. It is now orally represented that in the normal course, the appeals will take about two or three years and if that is so, the petitioner will suffer great loss. If the petitioner prefers appeals, the appellate authority is directed to dispose of the same within four weeks from the date of filing of the appeals.