COLLECTOR OF CUSTOMS & EXCISE, COCHIN & ORS. versus A. S. BAVA

Citation: [1968] 1 S.C.R. 82 · Decided: 27-07-1967 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed
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Judgment (excerpt)

82 
COLLECTOR OF CUSTOMS & EXCISE, COCHIN & ORS. ! 
v. 
A. S. BAVA 
July 27, 1967 
[J. C. SHAH AND S. M. S!KRI, JJ.] 
Central Excise and Sa.It Act (1 of 1944), ss. 12 and 35-Unfetter-
ed right of appeal-Provision of s. 129, Sea Customs Act, 1878 ezten.-
ded to appeals under Excise Act-Obligation to deposit amount of 
duty pending appeal-If provision in s. 129 one ;in regard to proce· 
dure relating to appeals-Validity of extension. 
B 
Under s. 35 of the Central Excise and Salt Act, 
1944 (Excise c 
Act) a person aggrieved by any decision or order under the Act 
and rules has an unfettered right of appeal. Under s. 12 of the Act, 
the Central Government may apply to appeals under the Excise Act 
the Provisions of the Sea Customs Act, 1878 (Customs Act) dealing 
with th~ nrooedure relating to appeals. Jn· exercise of this power, 
the pi<ovisions of s. 129 of the Customs Act were made applicable 
to uppeals under the Excise Act. The section requires an appellant 
to deposit, pending the appeal, the duty or penalty imposed, and D 
empowers the appellate authority, in his discretion, to doispense 
with such deposit pending the appeal in any ·particular case. 
The respondent filed an appeal against the duty imposed on him 
under the Excise Act and prayed for dispensation. of the deposit. 
The Collector. who was the appellate autho~lty, rejected the pra-
yer and. when no deposit was made Within the time fixed, dismissed 
the appeal. The respondent filed a writ petition in the High Ccnirt I 
which was allowed, and the Collectol'I was directed to 
hear the 
appeal on merits. 
The Collector appealed to this Court. 
HELD: Since s. 35 of the Excise Act gave a right of appeal and 
s 129 of the Customs Act whittled down that substantive right, s. 129 
could not be regarded as "procedure relating to appeals" with-
in s. 12 of the Excise Act. The High Court was therefore right in F 
holding that the application of s. 129 of the Customs Act to appeals 
under the Excise Act was in excess of tile powers conferred under 
s. 12 of the Excise Act. The facts that . an alternative remedy was 
available to the respondent under the Excise Act, and that he invok-
ed the dispensing power of the appellate authoruty under s. 129 of 
the Customs Act, did not bar the jurisdiction of the High Court to 
entertain the writ petition, especially when the jurisdiction of the 
Collector io insist upon the deposit of duty pending appeal was it- G 
self questioned. [84B-D; 86F-G] 
Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pra-
desh, [1953] S.C.R. 987. 4 S.T.C. 114, followed. 
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2007 
and 2008 of J 966. 
Appeals by special leave from the judgment and order dated 
September 28, 1965 of the Kerala High Court in O.P. Nos. 219 
and 223 of 1964. 
B 
• 
' 
OOLl.BCTOB Ol!' CUSTOMS V. ])AVA (8ikft, J,) 
83 
A 
D. R. Prem. R. N. Sachthey and S. P. Nayar, for the appel-
B 
lants (in both the appeals). 
S. T. Desai and R. Gopalakrislman, for the respondent (in 
both the appeals). 
The J udgmeni cf tl:e Co1Jrt was delivered by 
Slkrl, J.-These appeals, by special leave, are directed against 
the judgment of the High Court ot Kerala · allowing two 
petitions filed by the respondent, M/s. A. S. Bava, under art. 226 
of the Constitution. The High Court, by this judgment, quashed 
two orders dated February 4, 1964, and directed the Collector 
of Customs, & ·Central Excise, Cochin, to hear the appeals pre-
C ferred by M/s. A. S. Bava. 
The relevant facts are as follows: MI 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 Rule 
40 of the Q:ntral Excise and Salt Rules, 1944. The petitioner 
D filed appeals against these Oiders en or aho11t July 4, 1963, to the 
Collector of Customs & Central Excise. The petitioner made a 
representation on October 3, 1963, rtquesting that it may not be 
required to deposit the duty demanded pending appeal. The Col-
iector, bi iclter dated January 9, 1964, rejected the representation 
and requested the petitioner to deposit the duty within 15 days of 
a. tile receipt of the letter. On the petitioner failing to deposit the 
amount, the appeals were dismissed on December 4, 1964. There-
upon, as already stated, the petitioner filed two petitions under 
art. 226 and the petitions having been allowed. and the appellant 
havi
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