JAIN, J. - (1.) THESE special appeals filed under Section 18 of the Rajasthan High Court Ordinance, 1949 are directed against the common order of the learned Chief Justice dated 8. 4. 92 dismissing seven writ petitions and the order dt. 16. 4. 92, and the orders dated 23. 4. 92/21. 5. 92 passed by the learned Single Judge whereby on the basis of the said order he has dismissed seven writ petitions.
(2.) SINCE all these appeals raise a common question of law and fact filed by the same petitioner, so they are being disposed of by this common judgment. Though appeals arising out of the common order passed in S. B. C. W. Petition No. 2602, 2604 and 2606 of 1986 are not before us. The facts which are necessary for the disposal of these special appeals as alleged in D. B. Special Appeal No. 298/92 are that the petitioner-appellant is a private limited Company registered under the Companies Act and engaged in the business as exporters, importers and manufacturers having its registered office at Jodhpur. The petitioner-appellant Company manufactures synthetic yarn, imports as raw material, 'polyster Staple Fibre'. It is alleged that the appellant Company imports Polyster Staple Fibre for the manufacture of yarn. The customs authorities are classifying Polyster Staple Fibre as customs tariff item No. 5503. 20 and Excise Tariff Item No. 5501. 20 for the purpose of assessing the duty payable by the petitioner on the Polyster Staple Fibre imported by the Company. The petitioner appellant Company was asked to pay custome duty on 14. 5% ad-valorem which was challenged before the learned Chief Justice contending that under the various notifications issued by the Central Government, the goods filling within Chapter 55 have been exempted and the 'polyster Staple Fibre' which is also covered by Chapter 55 can be charged customs duty @ 100% ad-valorem. It was also prayed that assessment contained in Ex. 2 may be quashed and a direction may be issued to the respondents to assess the customs duty payable by the petitioner as per notification-1 on Polyster Staple Fibre at 100% ad-valorem and not at 145 plus Rs. 91- per Kg. The learned Chief Justice (as he then was) dismissed the writ petitions on the ground that the petitioner can very well pursue its remedy under the Customs Act vide order dated 8. 4. 92 but on the prayer made by the counsel for the petitioner, directed that if the appeal is preferred within two months from today before the Authorities entitled to receive the same, it shall not be dismissed on the ground of limitation. Instead of approaching the concerned authorities, the petitioner has preferred this special appeal on 25. 5. 1992 and pending since then at the admission stage and no stay has been granted. Mr. Purohit, learned counsel for the petitioner-appellant has contended that the learned Chief Justice has erred in dismissing the petitions on the ground of alternative remedy since it is not a Bar before the High Court to decide writ petition. He has also contended that the learned Chief Justice (as he then was) has erred in observing that without first getting the final order from the Appellate Authority on the facts as to what type of staple fibre was and whether it was covered by Entry 3, it was not possible to give the benefit since there is no dispute regarding the type of the staple fibre in the case at all. Counsel for the petitioner-appellant has also stated that now the appellant company has deposited the demand as per assessment. Learned counsel for the petitioner-appellant has placed reliance on Hindustan Safety class Works Ltd. Vs. C. B. E. (1), Rajendra Singh Vs. the Municipal Board, Nagaur (2) and Raj Pack Well Ltd. Vs. Union of India Mr. Choudhary has supported the order of the learned Chief Justice (as he then was) submitting that the special appeals are not maintainable. We have heard learned counsel for the parties and perused the material on record and cases cited at Bar.
(3.) IT is well settled that when impugned order is per se without jurisdiction it is always open to the High Court to entertain a writ petition notwithstanding the fact that there is an alternative statutory remedy otherwise if there is alternative remedy the High Court should not exercise -discretion under Article 226. IT is also settled that if the writ petitions are admitted and pending and heard on merits they should not be dismissed on the ground of existence of an alternative remedy as there is no absolute bar to its maintainability. Thus, the ratio of the authorities cited cannot be disputed but no hard and fast rule of the application can either be enunciated or evolved and each case depends upon the facts of its own. In the instant case, the petitioner sought the benefit of Notification Anx. 1 and a contention was raised before the learned Chief Justice (as he then was) that there were no dispute on the basic facts but the same was opposed by the non-petitioner stating that whether the exemption given to the petitioner by Anx. 1 falls under the omnibus class "3" was one which was required to be departmentally decided by the authorities entitled to look into the facts and to decide the same. Thus, the learned Chief Justice (as he then was) has observed that the nature and character of the commodity concerned could be better examined and finding be recorded for applying Anx. 1, the exemption notification. The learned Chief Justice (as he then was) has also observed that the facts do not fall within the scope of writ jurisdiction to determine the question about entitlement of Anx. 1 to get the benefit of exemption. Admittedly, the petitioner, without approaching the concerned authorities has directly rushed this Court by means of writ petition against Ex. 2 for getting benefit of exemption in view of Anx. 1. But to our mind the controversy raised in these appeals involves investigation into the facts for which undisputedly writ jurisdiction cannot be invoked particularly when there is a statutory remedy, available to the petitioner. At the cost of repetition, we would like to quote the authority referred by the learned Chief Justice (as he then was) reported in Assistant Collector Central Excise Chanda Nagar Vs. Dunlop India (4), where in it has been observed as under : - "article 226 is not meant to short circuit or circumvent statutory procedure. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situation, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. " As already stated the petitioner-appellant has not challenged the vires of any provision nor satisfied the Court that the statutory remedy is entirely ill suited to meet the demands of extra-ordinary situation and has only challenged notice seeking benefit of Anx. 1. In view of the above, the learned Chief Justice (as he then was) in the exercise of its discretion has rightly declined to interfere. The discretion so exercised in the given case is neither arbitrary nor illegal. We are in agreement with the view taken by the learned Chief Justice (as he then was ). ;