ORDER M.C. Agarwal, J.
1. This writ petition under Article 226 of the Constitution of India is directed against an order dated 28th September, 1994 passed by the Collector (Appeals) Customs and Central Excise, Ghaziabad whereby it dismissed the petitioner's Appeal No. 214/CE/ MRT /94 for failure to deposit the duty demanded by the Collector.
2. I have heard the learned counsel for the Petitioner and Shri S.K. Rai, the learned Standing Counsel for the Union of India.
3. No counter-affidavit is desired by the respondent to be filed and as agreed, the writ petition has been finally heard at the admission stage in accordance with the rules of the Court.
4. The petitioner had filed an appeal before the Collector (Appeals), Ghaziabad, which was pending. In terms of Section 35F the petitioner was to deposit the duty demanded and in terms of the proviso to Section 35F the petitioner applied to the Collector (Appeals) to waive condition of pre-deposit. By an order dated 12th July, 1994 the petitioner's application for waiver was rejected and the petitioner filed Civil Misc. Writ Petition No. 824 of 1994 in this Court challenging the said order. By order dated 5th September, 1994, the said writ petition was allowed and the impugned order dated 12th July, 1994 was set aside. The Collector (Appeals) Customs and Central Excise, Ghaziabad, was directed to dispose of the petitioner's application for waiver afresh after giving the petitioner/appellant a proper opportunity of hearing.
5. By the impugned order dated 14th September, 1994 the Collector (Appeals) has dismissed the petitioner's appeal for non-compliance of the requirements of Section 35F. According to the petitioner it had informed the Collector on 6th September, 1994 about the order passed by this Court. It was, however, on 15th September, 1994 the petitioner produced a copy of the aforesaid order before the Collector (Appeals).
6. As is evident by order dated 5th September, 1994 this court had vacated the earlier order passed by the Collector (Appeals), Ghaziabad, with the result that the petitioner's application for waiver was revived and it was pending before the Collector, when he passed the impugned order dated 14th September, 1994. The order dated 5th September, 1994, became effective as soon as it was passed and the petitioner's application for waiver stood revived. The effect of this court's order dated 5th September, 1994 did not depend on its communication to the Collector (Appeals). The result,, therefore, is that the Collector (Appeals) has dismissed the petitioner's appeal without disposing of the waiver application. This procedure is patently illegal.
7. Learned counsel for the Union of India contended that the petitioner can challenge the order dated 14th September, 1994, before the Customs Tribunal and there being an alternative remedy available to the petitioner the writ petition should not be entertained. This contention in my view, is not tenable. As is evident the Collector (Appeals) has acted in a queer way. The existence of an alternative remedy is not an absolute bar to the entertainment of a writ petition and it is one of the fittest cases in which the remedy should be expeditiously allowed to the petitioner by the exercise of jurisdiction under Article 226 of the Constitution of India.
8. For the above reasons, the writ petition is allowed and the impugned order dated 14th September, 1994 is hereby quashed. The Collector (Appeals), Ghaziabad shall now proceed with the matter in accordance with law and in accordance with the order dated 5th September, 1994 passed in Writ Petition No. 824 of 1994. It is further ordered that till the disposal of the waiver application by the Collector, the recovery of demand disputed in Appeal No. 214/CE/MRT/94 shall remain stayed.