Harish Tandon, J.The common questions of law are involved in the above writ petitions firstly, whether an appeal shall lie to the High Court from every order passed by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment) disposing of an application, allowing or refusing the dispensation of deposit u/s 129E of the said Act; secondly the writ petition is maintainable if the order passed by the Appellate Tribunal does not involve the substantial question of law. Chapter-XV of the Customs Act which deals with the appeals contains Sections 128 to 131A providing the right of an appeal and the procedure and powers incidental thereto. Section 128 of the said Act creates a right on any person aggrieved by a decision or order passed under the said Act by an officer of the Customs lower in rank than the Commissioner of Customs to the Commissioner (Appeals). Section 128A of the said Act is a procedural provision regulating the said appeal filed before the Commissioner (Appeals). Section 129 relates to the constitution of the Appellate Tribunal to be called the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) by the Central Government and the constituents thereof. Section 129A provides for an appeal to the Appellate Tribunal against the decision of an order passed by the Commissioner of Customs as an adjudicating authority; order passed by the Commissioner Appeals; order passed by the Board or the Appellate Commissioner of Customs before the appointed date and an order passed by the Board or the Commissioner of Customs either before or after the appointed date. The said provision put a fetter in deciding an appeal against an order passed by the Commissioners (Appeals) if it relates to any goods imported or exported at baggage or the goods loaded in conveyance for importation into India but not unloaded at the place of destination in India either full or the short quantity or the payment of drawback. Section 130 further provides for an appeal before the High Court from every order passed in an appeal by the Appellate Tribunal on or after the 1st day of July, 2013 if the High Court is satisfied that the case involved a substantial question of law. Every order does not include an order relating, among other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment as those orders are amenable to be challenged directly before the Supreme Court u/s 130E(b) of the said Act. Section 129E of the said Act envisaged the deposit of a duty and interest demanded in respect of the goods in any appeal preferred under the said chapter. The first proviso thereto bestowed the power upon the Appellate Tribunal or Commissioner (Appeals) to dispense with such deposit if it would cause undue hardship to the appellant keeping in mind to safeguard the interest of revenue.

2. One of the contention raised in this writ petition by the respondents is that the order disposing of an application for dispensation of the condition of deposit as enshrined u/s 129E of the said Act is capable of being challenged in an appeal u/s 130 of the said Act. The expression every order appearing u/s 130 of the said Act can not have a restricted meaning so as to include the final order only but imbibed within itself the interlocutory order, meaning thereby, an order passed by the Appellate Tribunal or the Commissioner (Appeals) while disposing of an application for dispensation of pre-deposit condition envisaged u/s 129E of the said Act. In support of the aforesaid contentions, the reliance is placed upon a division bench judgment of this Court in case of Ambika Nahar Exports and Another Vs. Commissioner of Customs (Port) and Others,

3. It is, however, submitted by the petitioner that the appeal u/s 130 of the said Act is a conditional one, inasmuch as, it is maintainable only if it involves substantial question of law. The petitioner further contends that the right of an appeal, if not defined, the order can be assailed in a writ jurisdiction under Article 226 of the Constitution of India. In support of the aforesaid contentions, the petitioner placed reliance upon an unreported judgment of this Court in case of M/s. Kamala Metachem & Ors. v. Commissioner of Customs (Port), Kolkata & Ors. (WP No. 919 of 2006 decided on 25-4-2007) and another unreported judgment of the Division Bench in case of M/s. Lumno Industries Ltd. v. Commissioner of Central Excise, Haldia Commissionerate (CEXA No. 9 of 2013 decided on July 3, 2013) [since reported in Lumno Industries Ltd. Vs. Commissioner of Central Excise, a Division Bench judgment of the Delhi High Court in Union of India (UOI) Vs. Classic Credit Ltd.,

4. In case of M/s. Kamala Metachem (supra), the co-ordinate bench was dealing the identical matter where an order disposing of an application for dispensation of the pre-deposit of the duty and interest was involved. The Court has not ruled that an order passed u/s 129E of the said Act is not amenable to be challenged in an appeal u/s 130 of the said Act but held that the appeal to the High Court is not automatic but the conditional one that it involves a substantial question of law in these words:

"An appeal to the High Court is, therefore, not automatic. The condition precedent for entertaining an appeal is the satisfaction of the High Court of the case involving a substantial question of law. An order u/s 129E of the Customs Act, 1962, dispensing with disputed duty and/or penalty either fully, or in part, or refusing to do so is generally based on assessment of facts and may or may not involve any question of law, far less, any substantial question of law.

An appeal may lie to the High Court from an order of the Tribunal waiving pre-deposit of the disputed duty and/or penalty either wholly or in part or refusing to waive pre-deposit, if the order is based on a finding which gives rise to a substantial question of law."

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An order of CESTAT dismissing an appeal u/s 129E of the Customs Act, 1962 whether on the ground of non deposit of the disputed duty or penalty or on the ground of the same being barred by limitation for any other reason would amount to affirmation of the order under appeal. An order dismissing an appeal could therefore, be appealable to the High Court, if the appeal involved a substantial question of law."

5. The Division Bench in case of Polar Industries Limited Vs. CESTAT, does not also suggest that the appeal is not maintainable against an order refusing or allowing the dispensation of the deposit of the duty and interest as required u/s 129E of the said Act before the High Court but held that such appeal is maintainable if it involves a substantial question of law. The Delhi High Court in case of Classic Credit Ltd. (supra) also echoed the view taken by this Court in the aforesaid unreported judgment in these words:

"18. In our considered opinion, an appeal u/s 35 is not ordained or an automatic procedure. The condition precedent for entertaining an appeal is the satisfaction of the High Court that the case involves a question of law as contemplated by Section 35 of the Act. The relief under Article 226 can be refused on the ground of existence of alternative remedy only if that alternative remedy is effective and equally efficacious. Evaluation of circumstances which warrant waiver of pre-deposit would fall within the purview of Article 226 of the Constitution of India."

6. The proposition of law that even an order passed u/s 129E of the said Act is amenable to an appeal before the High Court u/s 130 of the said Act lend support from the Division Bench judgment of this Court in case of Ambika Nahar Exports (supra) wherein it is held that the order disposing or refusing to dispense the deposit of a duty and interest is not an exceptional order so as to bring out of the purview of Section 130 of the said Act in these words:

"9. From a plain reading of the aforesaid two provisions of the Act, we find that an order dispensing with the deposit of the amount or refusing to do so, does not come within the exceptions mentioned in Section 130 of the Act and, therefore, any order either exercising discretion in favour of the appellant or against the appellant in the matter of deposit of the amount can be successfully challenged by way of an appeal u/s 130 of the Act provided substantial question of law is involved in such appeal."

7. The inescapable conclusion which could be arrived from the above noted decision is that the order passed u/s 129E of the Act is certainly amenable to an appeal u/s 130 of the said Act provided it involves a substantial question of law. It leads to another question whether what could be said to be a substantial question of law. The expression question of law is qualified with the word "substantial" which admits no ambiguity that mere existence of a question of law does not make the appeal valid unless it is substantial. One can lend support from a judgment of the Supreme Court in case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., wherein it is held that to be substantial, the question of law must be debatable and have a material bearing on the decision of the case, in so far as, the rights of the parties are concerned in these words:

"The phrase "substantial question of law", as occurring in the amended section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradiction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many others provisions such as section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In AIR 1928 172 (Privy Council) the phrase "substantial question of law" as it was employed in the last clause of the then existing section 110 of the CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju and Others,

"......when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand, if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial (page 1318):

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) section 110 of the Code.

A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involved in the case", there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

8. Had it been a case that the legislature intended to provide the right of an appeal against every order passed by the Appellate Tribunal involving question of law which is of wide import, the position would have been different than if the same is qualified with the word "substantial" which though confers the right of an appeal but in restricted arena.

9. In case of Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, the Supreme Court while considering a matter arising from an order passed u/s 260A of the Income tax Act, 1961 which relates to an appeal before the High Court against an order passed by the Appellate Tribunal if the High Court is satisfied that the case involves a substantial question of law held that the finding of fact may also raise a substantial question of law if it is based on no evidence, non-consideration of relevant admissible evidence, drawing of wrong inferences on a proven facts and against the well-settled proposition of law in these words:

"22. In Hero Vinoth v. Seshammal, this Court has observed that: (SCC p. 556, para 24)

"(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)."

10. In a most recent judgment delivered by the Supreme Court in case of Union of India (UOI) Vs. Ibrahim Uddin and Another, it is held that to be substantial, the question of law must be debatable and must have a material bearing on the decision of the case and even the facts can be gone into provided the findings thereupon is vitiated by non-consideration of the relevant evidence or an apparent erroneous approached to the matter in these words:

"66. In Oriental Investment Co. Ltd. v. CIT this Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd. v. CIT and held that where the question of decision is whether certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that: (Oriental Investment case, AIR p. 856, para 29)

"29. ... inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a mixed question of law and fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable."

67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh, Prativa Devi v. T.V. Krishnan, Satya Gupta v. Brijesh Kumar, Ragavendra Kumar v. Firm Prem Machinery & Co., Molar Mal v. Kay Iron Works (P) Ltd., Bharatha Matha v. R. Vijaya Renganathan and Dinesh Kumar v. Yusuf Ali.]"

11. On the above noted principle enunciated in the above reports, my answer to the first question framed herein above is an affirmative with the rider that it must involve the substantial question of law.

12. In the realm of public law, the High Court exercises the power of judicial review against the illegality, irrationality and procedural impropriety of an order passed by the State or the statutory authorities and does not act as an appellate authority. Under Article 226 of the Constitution, High Court not only protects the fundamental right of the citizen but also the other legal right from injustice wherever it is found. The exercise of power under Article 226 cannot be restricted and is an essential part of the rule of law and have been expressly entrusted as sentinel in qui vive.

13. In case of L. Chandra Kumar Vs. Union of India and others, the constitutional bench of the Supreme Court held that the power of judicial review under Article 226 of the Constitution is one of the basic features therein and any impositions and/or restrictions would amount to alteration of the basic structure which is not permissible. The power of judicial review shall be refused to be exercised when the person has the alternative efficacious remedy provided therefore. It is a rule of discretion rather than the rule of compulsion. In case of The State of Uttar Pradesh Vs. Mohammad Nooh, the Supreme Court held that exercising the jurisdiction under Article 226 is not a abject rule but somewhat flexible and primarily a matter of discretion as opposed to the rule of law in these words:

"If an inferior Court of Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Courts sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of Court or Tribunal of first instance even if an appeal to another inferior Court or Tribunal was available".

14. In a subsequent judgment rendered in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , the Apex Court held that the High Court can entertain the writ petition in spite of the alternative remedy with the following observations:

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmed v. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefore", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.

17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh as under:

"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."

18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and was affirmed and followed in the following words:

"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I laid down:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction u/s 34, Income Tax Act."

20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

15. It in a most recent judgment rendered in case of Union of India (UOI) and Another Vs. Guwahati Carbon Ltd., the Apex Court while dealing a matter relating to Central Excise Act, 1944 where Section 35G provides for an appeal before the High Court if it involves the substantial question of law held:

"4. We reiterate that the High Court, under Article 226 of the Constitution of India, has vast powers as this Court has under Article 32 of the Constitution of India, but such powers can only be exercised in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice."

16. The Bench further took note of the various other judgments of the Court including the one rendered in case of Whirlpool Corporation (supra) and held that when the statute provides a complete mode to seek redress to the grievance, the writ court should have refused to exercise the discretion unless the remedy provided under the statute is exhausted first in these words:

"8. Mr. Iqbal Chagla, Senior Counsel appearing for the appellant, has contended that a notice u/s 56(4) can be issued only by the "Tribunal", which has been defined in Section 2(1)(x), which means the Registrar or the High Court before which the "proceeding concerned" is pending. Mr. Chagla has contended that it is either the Registrar or the High Court, which can issue a notice u/s 56(4), but out of the two, only that authority can issue the notice before which the "proceeding concerned" is pending. It is further contended that since a passing-off suit was already pending in the Delhi High Court, where the appellant had also moved an application for amendment of the plaint so as to include the relief of infringement of its trade mark, notice u/s 56(4) could have been issued only by the Delhi High Court and not by the Registrar.

9. Mr. R.N. Trivedi, ASG appearing for the Registrar, has, on the contrary, contended that the Registrar continued to retain his jurisdiction u/s 56 of the Act, notwithstanding the pendency of the passing-off suit filed by the appellant in the High Court as the said suit could not be treated to constitute, in any manner, "proceedings" under the Act. Moreover, the application for amendment, by which the relief relating to infringement of trade mark was sought to be added in the plaint was still pending and unless that application was allowed and the additional paragraphs, including the above relief, were added in the plaint, the nature of proceedings would not change and they will continue to be treated as proceedings in a suit and not "proceeding" under the Act.

10. This is also the contention of Mr. Sudhir Chandra, Senior Counsel appearing for the Chinar Trust. He has also contended that the High Court was fully justified in dismissing that petition at the threshold particularly as the writ petition was directed only against a notice issued u/s 56(4) of the Act requiring the appellant to show cause why the Registration Certificate be not cancelled. The appellant, it is contended, should have submitted a reply to that notice and allowed the Registrar to dispose of the whole matter on merits particularly as the Registrar had initiated the action principally on the ground that the appellant had obtained the renewal of the trade mark by misrepresentation and concealment of relevant facts.

11. Mr. Chagla, in reply, has submitted that where the action initiated by a statutory authority is wholly without jurisdiction, it can be challenged under Article 226 of the Constitution and the writ petition cannot be dismissed summarily. In the instant case, the Registrar, it is contended, could not have legally acted as the Tribunal as the "proceeding concerned" was pending before the High Court and, therefore, the High Court alone could have acted as a "Tribunal" and initiated action u/s 56(4) of the Act.

12. Learned counsel appearing on behalf of the parties have thus tried to create a whirlpool of arguments around the word "Tribunal" as defined in Section 2(1)(x) of the Act and, therefore, in order to save ourselves from becoming the victim of "vertigo" of this whirlpool at the Bar, we have, for the time being, dispassionately assumed the role of a grammarian, to consider the science of the English language from the point of view of inflexion, punctuation and, of course, the whole syntax, as the argument of the respondents counsel is based, almost wholly, on the importance of "comma" and the pronouns, "which" or "whom", occurring in that definition keeping, at the same time, in our mind, the principle grammatica falsa non vitiat chartam (false grammar does not vitiate a deed) and the question whether this would also apply to statutory interpretation. But before we do it, we will first dispose of the preliminary objection relating to maintainability of the writ petition as filed in the High Court, allegedly, being premature and having been brought without first exhausting the alternative remedies under the Act.

13. Learned counsel for the appellant has contended that since suo motu action u/s 56(4) could be taken only by the High Court and not by the Registrar, the notice issued to the appellant was wholly without jurisdiction and, therefore, a writ petition even at that stage was maintainable. The appellant, in these circumstances, was not obliged to wait for the Registrar to complete the proceedings as any further order passed by the Registrar would also have been without jurisdiction.

14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

17. This Court in case of Polar Industries Ltd. (supra), in an unreported judgment does not laid down the proposition that an order for dispensation of the pre-deposit of the duty is not amenable to appeal but what is held is that the said remedy is not exhaustive and/or definite because of the peculiarity in the provision relating to the involvement of substantial question of law in these words:

"Section 35G of the Central Excise Act, 1944 provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order 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), if the High Court is satisfied that the case involves a substantial question of law. The alternative remedy of appeal is subject to the satisfaction of the High Court that not only a question of law but a substantial question of law is involved. Where the alternative remedy is not definite, but subject to the satisfaction of the High Court of involvement of a substantial question of law, a writ application should, in my view, not be rejected on the sole ground of existence of an alternative remedy of appeal. Moreover, it is doubtful whether any substantial question of law is involved in the instant case."

18. The same Honble Judge in case of Kamalal Metachem (supra) in dealing a matter relating to the Customs Act held that an appeal may lie to the High Court from an order of the Tribunal allowing and/or refusing to allow the waiver of the pre-deposit condition if the finding so arrived gives right to a substantial question of law in these words:

"An order of CESTAT dismissing an appeal u/s 129E of the Customs Act, 1962 whether on the ground of non deposit of the disputed duty or penalty or on the ground of the same being barred by limitation for any other reason would amount to affirmation of the order under appeal. An order dismissing an appeal could therefore, be appealable to the High Court, if the appeal involved a substantial question of law."

19. It is further held where the alternative remedy by way of an appeal is uncertain and dependent upon certain conditions, the writ jurisdiction can be invoked even in absence of involvement of substantial question of law in these words:

"The remedy of an Appeal to a Division Bench of the High Court is certainly an efficacious remedy or rather a more efficacious remedy, warranting refusal to exercise jurisdiction under Article 226 of the Constitution of India. This Court would, therefore, refuse to entertain a writ petition challenging an order from which an appeal lay to a Division Bench of the High Court as a matter of right.

Where, however, the admission of an appeal from an order of a Tribunal is conditional upon satisfaction of the High Court of the existence of a substantial question of law, and, therefore, fraught with uncertainty, it would not be proper for this Court to refuse to exercise its writ jurisdiction on the sole ground of existence of an alternative remedy of appeal and more so, when it prima facie appears to this Court that the order impugned does not give rise to a substantial question of law that requires determination."

20. What could be culled out from the above decision that the power under Article 226 can be exercised even there being an alternative remedy but to be considered as a rule of self-imposed limitation. It is essentially a rule of policy, convenience, a discretion and not a rule of law. Therefore, the writ petition cannot be said to be non-maintainable merely because an alternative remedy is provided under the statute if the case comes within the exceptions as laid down in the above noted reports.

21. In W.P. 25803 (w) of 2013, the petitioner challenged the order passed by the adjudicating authority under the Customs Act before the Appellate Tribunal. The officer of the bearer of Regional Unit, Siliguri found the red sander woods concealed under the bag of master oil cakes for export to Bangladesh. The assessee used the import and export port for master oil cakes but appears to have been trying to smuggle the red Sander woods against the imposition of penalty of Rs. 10 lakhs u/s 14(1) of the Customs Act, 1962, the appeal is filed before the Tribunal. Various pleas are raised by the assessee in the said appeal challenging the order passed by the adjudicating authority in imposing the penalty. The petitioner took out an application for waiver of the deposit of the penalty before the Appellate Tribunal. The Appellate Tribunal disposed of the said application on 4-10-2012 by way of 90% of the penalty and directed the payment of 10% of the penalty within a stipulated period. The Tribunal further observed that if such penalty is not deposited within the time indicated therein, the appeal would be dismissed without further notice. The petitioner filed another application for modification of the stay order which on the meaningful reading would suggest that the petitioner prayed for waiver of the conditions of deposit of 10% of the penalty. The Tribunal not only dismissed the said application but dismisses the appeal itself. Both the orders are challenged in this writ petition.

22. On reading of the order by which an application for waiver of the pre-deposit of the penalties is disposed of. This Court does not find that the discretion so exercised by the authorities could be termed to be capricious, irrational and beyond the settled legal parameters. The Court, therefore, does not find any merit in the contention of the petitioner although, the said order is capable of being assailed in an appeal before the High Court u/s 130 of the Customs Act. But this Court finds that a subsequent order of dismissal of the appeal itself for non-deposit of the 10% of the penalty would not attract the dismissal of the appeal itself. The writ jurisdiction can certainly be invoked even if there is an existence of an alternative remedy by way of an appeal if on the face of it, the order appears to have been passed de hors the statute. The power of an appeal before the Appellate Tribunal could be traced from Section 129A of the Customs Act, 1962 which does not contain any provision either to be proceeded by a deposit of the duty and the penalty imposed by the adjudicating authority as a condition precedent or in default of such deposit, the appeal would be liable to be dismissed. In absence of the specific provisions, the authorities cannot innovate the mechanism for dismissal thereof at any stage of the said appeal. The appellate tribunal could very well proceed to decide the appeal and simultaneously therewith, the adjudicating authority can take recourse to the provision of the statute for recovery thereof. The statutory authorities are bound to act within the precincts of the statute and cannot travel beyond it. By imposing the condition that if the deposit is not made, the appeal would attract dismissal, such course is neither contemplated under the Customs Act not could confer power upon the statutory authority whose genesis whereof flows therefrom.

23. This Court, therefore, finds that the order dated 21-2-2013 by which the appeal is dismissed by the Appellate Tribunal is illegal and beyond the powers conferred under the Customs Act.

24. This Court, therefore, set aside the said order dated 21-2-2013 to the extent where it relates to the dismissal of an appeal and does not interfere with the order by which the miscellaneous application is dismissed by the Tribunal. This Court hereby refused to interfere with the discretionary order dated 4-10-2012 passed by the Appellate Tribunal. The petitioner is at liberty to approach the Tribunal to pray for an extension of time to deposit directed to be paid in terms of the said order and if such approach is made, the Tribunal would consider the same on merit in accordance with law.

25. In W.P. 15430 (w) of 2013, the Tribunal disposed of an application for waiver of the deposit of the duty and penalty by permitting the petitioner to pay 25% of the amounts so assessed by the adjudicating authority. The petitioner have further challenged the subsequent order dated 9-4-2013 by which the appeal was dismissed for non-deposit of the penalty in terms of the earlier order by which an application for waiver was disposed of. From the provision of the Central Excise Act, this Court does not find any conditions put in therein to suggest that non-deposit would entail the dismissal of the appeal itself.

26. The provisions under the Central Excise Act and the Customs Act are in pari materia and, therefore, this Court feels no hesitation to adopt the same view as has been taken in the other writ petition.

27. Both the writ petitions are disposed of.

28. However, there shall be no order as to costs. Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.