Section 129 of the Customs Act, 1962, which requires an appellant to deposit the duty or penalty levied pending an appeal, cannot be said to be provisions relating to procedure relating to appeals within S. 12 of the Central Excise and Salt Act, 1944.

Judgement

SIKRI, J.: These appeals, by special leave, are directed against the judgment of the High Court of 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 and Central Excise, Cochin, to hear the appeals preferred by M/s. 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 of the 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 of the 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.

3. The learned counsel for the appellants has raised three points before us:

(1) The petitions under Art. 226 were not maintainable as the petitioner did not avail himself of the remedy of revision provided by S. 36 of the Excise Act.

(2) The petitioner having availed of the remedy under S. 129 of the Customs Act was debarred from challenging the impugned notification, dated May 4, l963.

(3) The impugned notification applying S. 129 of the Customs Act was good.

(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.

6. To appreciate the third point, it is necessary to extract the relevant statutory provisions. Section 12 of the Excise Act authorises the Central Government to apply provisions of the Sea Customs Act, 1878, now replaced by the Customs Act, 1962, in the following terms:

"12. The Central Government may, by notification in the Official Gazette, declare that any of the provisions of the Sea Customs Act, 1878, relating to the levy of and exemption from customs duties, draw