A. P. RAVANI, J. U. MEHTA, J.

( 1 ) IS there no dividing line between can and should? If there is are we (i. e. the High Court) not under Constitutional obligation to maintain the same ? As we also can should we ? Or because other can we should not ? Such are the questions which have surfaced in this petition invoking exercise of powers under Art. 226/227 of the Constitution of India.

( 2 ) THE petitioner-Company is manufacturing Soda Ash and certain other articles. It imported coking coal from Australia. As per the relevant provisions of the statute and the notifications governing import of coking coal if the Ash content in coking coal is below 12% the importer would be entitled to exemption from payment of import duty. The petitioner had imported coking coal by five different consign- ments. In four consignments the Ash content of the coking coal was within the permissible limit i. e. below 12%. However in one of the consignments the Ash content of coking coal was 12. 3%. Hence the Department issued show cause notice calling upon the petitioner as to why duty of Rs. 1 48 33 959 should not be recovered from the petitioner By the same show cause notice the petitioner was also called upon to show cause as to why Customs Duty equivalent to Rs. 10. 00 (Rupees ten only) per Metric Ton as prescribed under Sec. 6 of the Coal Mines (Conservation and Development) Act 1974 leviable on the goods in question under Sec. 7 of the Coal Mines (Conservation and Development) Act 1974 be not recovered. The notice was issued under Sec. 28 of the Customs Act 1962 The petitioner appeared before the Assistant Collector of Customs Porbandar. It raised several defences inter alia contending that the sample of imported goods received by the Central Fuel Research Institute Dhanbad was in broken condition. Therefore there was a possibility of extraneous matter having been mixed up with the same. The petitioner also requested the Department to send another sample to an independent testing laboratory for retest- ing the Ash content. After hearing the petitioner on the aforesaid point and also on other points raised by the petitioner the Assistant Collector of Customs Porbandar negatived all the contentions raised by the petitioner and passed order dated 15/06/1989 By this order the Assistant Collector dropped the demand based on the provisions of Sec. 6 read with Sec. 7 of the Coal Mines (Conservation and Development) Act 1974 He relied upon a decision of this High Court in the case of Saurashtra Chemicals v. Union of India decided on 11/04/1989 (the case number or the petition number is not-cited) and hold that there was no notification supporting the demand of additional Customs Duty. Therefore the demand of Rs. 2 42 750 as and by way of additional duty was dropped. However demand of Customs Duty of Rs. 1 45 91 209 was confirmed. The petitioner has challenged the legality and validity of this order.

( 3 ) THE impugned order itself shows that an appeal against the same is maintainable before the Collector Appeals) Customs Appellate Office Bombay. The liability to pay import duty is 8 creation of statute. The duty to import certain goods in conformity with the provisions of the Customs Act 1962 and the notifications issued and rules framed thereunder is also an obligation imposed by the statute. This very statute has provided remedy for redressal of the grievance. Whenever a statute creates liability and the very statute provides for the redressal of the grievances it would not be proper for this High Court to exercise powers under Art. 226/227 of the Constitution of India and entertain petition by which the legality and validity of an order passed by the original authority exercising powers under the relevant provi- sions of the statute is challenged.

( 4 ) IT must be realised that exercise of powers by the High Court under the provisions of Art. 226/227 of the Constitution of India is not a matter of exercise of ordinary jurisdiction of this Court. Whene

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