JUDGMENT
V.S. Malimath, C.J.
1. This appeal is against the judgment of the learned single Judge in O.P. No. 6439 of 1984-D. The appellant was issued Notice Ext. PI dated 19-7-1984 by the Collectorate of Customs under Section 124 of the Customs Act, requiring him to show cause why action for confiscation of the goods should not be made. He was asked to file a written statement within the time specified and to appear before the adjudicating officer when the case is fixed for hearing, failing which he was informed that the case will be decided with the evidence on record without any further hearing. This notice was challenged by the appellant in O.P. No. 6349 of 1984 filed on 24th July 1984. That writ petition came up before the learned single Judge on more than one occasion and it came to be admitted on 31st July, 1984. The Collector of Customs however passed a final order in pursuance of the notice Ext. P1 on the 27 the July, 19& as per Ext. P14, confiscating the goods covered by three bilk of entry under Section 111D of the Customs Act. The appellants has been given an option to redeem the goods for home consumption on payment of a fine of Rs. 6 lakhs in lieu of confiscation within three months or such extended time as the Collector may allow. He has also imposed a personal penalty of Rs. 50,0007- under Section 112A of the Customs Act. When this fact of passing the final order by the Collector was brought to the notice of the learned Single Judge, when O.P. No. 6439 of 1984 came up for final hearing, the learned Single Judge dismissed the writ petition on the ground that the appellant has a statutory right of appeal against the order, Ext. P14, and that therefore there is no justification for this Court to/exercise its jurisdiction under Article 226 of the Constitution. It is the said judgment that is challenged in this appeal.
2. It was submitted by Sri Warriyar, the learned Counsel for the appellant, that the appellant did not file a written statement in response to Ext. PI within the specified time as he had chellenged the very same Notice Ext. PI in O.P. No. 6439 of 1984 and was bonafide pursuing his remedy in this Court. He submitted that the records show that the Collector of Customs had come to know about the appellant having approached this Court for reliefs challenging his Notice Ext. PI. It was further submitted that the Collector had stated in his Notice Ext. PI that if no written statement is filed in response to the said Notice, he would be entitled to proceed to dispose of the case on the date fixed for hearing on the basis of the evidence and material on record, without any further notice. It was pointed out that no date of hearing as such was filed by the Collector and therefore the Collector was not entitled to pass the order Ext. P14 without fixing a date of hearing.
3. Shri Madhavan Nambiar, the learned Counsel for the respondents, submitted that there is no justification for drawing the inference that the Collector proceeded to dispose of the matter with a view to render the writ petition filed by the appellant infructuous. He submitted that it is a bonafide act in the course of his official work which cannot be found fault with. We do not consider it necessary to probe this matter any further as we are inclined to take the view that there are adequate reasons for us to interfere with the impugned order, Ext. P14. The Notice Ext. PI makes it clear that even if the appellant did not file any written statement in reply to the Collector he would dispose of the case on the date fixed for hearing. It is not the case of the Collector of Customs that he had fixed any date for hearing of the case after the issuance of Ext. P1. Even if the appellant had not filed a written statement, if the date for hearing was fixed, would have been open to the appellant to appear before the Collector on the date of hearing, and to make his submissions against the proposed action on the basis of the material that use there before the Collector. This right of the appellant has been denied to him without any justification whatsoever. We are therefore inclined to quash Ext. P14. We would not have ordinarily interfered with the order Ext. P14 as the said order is an appealable order under the Customs Act. The learned Single Judge was right in taking the view that when the statute provides a right of appeal. We will not be justified in interfering under Article 226 of the Constitution. But it has to be pointed out that the appellant had filed an earlier writ petition O.P. 4413/84 before this Court for similar relief in regard to another consignment. The learned Single Judge had declined to interfere and relegated the appellant to the remedies available under the Act. If the decision Ext. P14 stands without being disturbed the hearing that should be given to the appellant, which is the subject matter of O.P. 4413/84 would be a meaningless exercise. Besides, it is necessary to point out that the impugned order having been made by the Collector during the pendency of O.P. 6439/84 in which the appellant has challenged Ext. PI notice the appellant’s conduct must be regarded as bonafide in pursuing his remedy before this Court. If in this background, the appellant did not participate in the proceedings before the Collector by filing a written statement, we are inclined to take the view that the appellant should not suffer for having taken resort to the proceedings under Article 226 of the Constitution. Having regard to these special factors and features of this case, we are inclined to interfer with the order impugned, Ext. P14, without expressing any opinion in regard to the merits of the case. We are inclined to quash the order solely on the ground that the appellant did not have an opportunity to participate in the proceedings before the Collector. We would however like to make it clear that if the Collector passes a fresh order after giving due notice, the aggrieved party would not be entitled to approach this Court under Article 226 of the Constitution, without availing the statutory remedies under Act.
For the reasons stated above, this appeal is allowed, the judgment of the learned Single Judge in O.P. No. 6439/84 is set aside and the order of the Collector of Customs, Ext. P14 is quashed. The appellant is given two weeks’ time to file his written statement before the Collector of Customs from this date. After taking into consideration the said written statement and fixing a date of hearing, the Collector of Customs shall proceed to dispose of the matter without being influenced in any manner by the view which he had already taken in the order Ext. P.14 quashed by us. If the appellant does not file a written statement within the specified time, the Collector shall fix a date of hearing and proceed to dispose of the case on the basis of the available material without any further opportunity to the appellant of producing any material in support of his case.