Judgment :- SHYLENDRA KUMAR, J. 1. Writ petition by the commissioner of customs, Bangalore, under Articles 226/227 of the Constitution of India, directed against the order dated 12-4-2001 [copy at Annexure-E to the writ petition] passed by the Customs, Excise and Gold (Control) Appellate Tribunal [CEGAT], South Zonal Bench, Bangalore in Appeal NO C/641/2000, relating to the respondent-assessee. 2. The commissioner, in preferring such a writ petition, had not only not availed of the statutory remedy, which was otherwise available against an order of this nature in terms of Section 130A of the Customs Act, 1982 [for short, the Act, as it prevailed on the relevant date when the impugned order was passed, and which reads as under: 130A. Application to High Court (1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 129B passed [before 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), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. (2) The Commissioner of Customs or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred. (3) On receipt of notice that an application has been made under sub-section (1), the person, against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which and application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub-section (1). (4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court but also, in fact, it can be taken that he had not filed and not availed of the statutory remedy within the period prescribed by the very statute i.e. within a period of 180 days from the date of the order passed by the tribunal. 3. The commissioner, while preferring the writ petition, has invoked both the Articles 226 and 227 of the Constitution of India, and has sought to urge several grounds including the grounds that the tribunal had chosen to interfere in a matter, where persons involved with goods such as mulberry raw silk, admittedly of foreign origin viz., Korean origin, had failed to establish legitimate importation of the seized goods such as 66 bales of mulberry raw silk yarn of Korean origin and consequently, the commissioner, in terms of the adjudication order dated 31-7-2000 [copy at Annexure-D to the writ petition], had not only confiscated the goods in terms of the provisions of Section 111(d) of the Act but also had chosen to impose personal penalties on the respondent under Section 112(b) of the Act. 4. It is because of this unusual of the commissioner having approached this court by invoking writ jurisdiction to get over the order passed by the tribunal, reversing the order of the adjudicating authority and directing not only release of the confiscated goods but also setting aside the personal penalties on the respondent, the respondent has raised a preliminary objection of tenability of this writ petition and more so, when the commissioner has not only not availed of the statutory remedy of Section 130A of the Act within the permitted time, but has, in fact, approached this court for relief, after the expiry of a period of one year seven months from the date of passing of the order i.e. after the period of more than one year of the expiry of the normal period of limitation to approach this court invoking reference jurisdiction of this court under Section 130A of the Act. 5. Brief facts leading to this petition are that. 5. Brief facts leading to this petition are that. The customs authorities on credible information had caused an inspection and search on the premises of one M/s Mishra Enterprises as on 20-9-1999 at No 34/2, Annadanappa Lane, Bangalore and had come across 66 bales of silk yarn valued then at Rs 25,04,337/-, found stocked in the premises and prima facie failed to account properly and that the person in-charge reportedly having claimed that he was only an agent of the present respondent Rajat Gupta of M/s Rajadhani Cotton and the said person having responded by saying that he was only a person who deals with such imported silk for selling it to others on commission basis. 6. Customs authorities, after seizing the said 66 bales of imported silk yarn, had proceeded to issue a show cause notice dated 3-3-2000 [copy at Annexure-A to the writ petition] not only to the respondent herein but also to other person namely Bechan Misra, who is claimed to be the purchaser of the goods in question from the respondent herein and on whose behalf the bales were stocked in the godown belonging to M/s Mishra Enterprises. 7. The show cause notice, which was in considerable detail, was very elaborately replied by the respondent in terms of the reply caused by his counsel as per the reply dated 31-3-2000 [copy at Annexure-B to the writ petition]. 7. The show cause notice, which was in considerable detail, was very elaborately replied by the respondent in terms of the reply caused by his counsel as per the reply dated 31-3-2000 [copy at Annexure-B to the writ petition]. This appears to have been supplemented by written submissions at the time of the personal hearing pursuant to the show cause notice, which was on 5-6-2000 [copy at Annexure-C to the writ petition], which were all taken into consideration for adjudication resulted in adjudication order dated 31-7-2000 [copy at Annexure-D to the writ petition’, where under the adjudicating authority – commissioner of customs – not only ordered absolute confiscation of the goods in the wake of the intervening developments that had taken place by auction sale of goods and sale proceeds for the same was Rs.19,72,268/-, the amount was directed to be appropriated to government of India and a personal penalty at Rs.5.00 lakh was imposed on the respondent herein with a further personal penalty of Rs.2.00 lakh on the other person Bechan Misra, also under Section 112(b) of the Act, who came on the scene as the person who was found in custody of the goods in the godown of the respondent herein and who, according to the version of the respondent and one Hukkumchand, was the real buyer though certain invoices produced by the respondent sought to make out a case of sale in favour of said Hukkumchand. 8. It is against this adjudication order, both the respondent and said Bechan Misra preferred separate appeals before the tribunal. 8. It is against this adjudication order, both the respondent and said Bechan Misra preferred separate appeals before the tribunal. The tribunal, which went into great detail of the grounds urged in support of the appeals, took the view that the appellants had made good their versions of legitimate importation of the goods of foreign origin and their version that the goods having been imported by one M/s Prashant Glass Works at Varanasi should have been accepted and dispatch of the goods particularly 66 bales silk yarn is part of the lawful importation by M/s Prashant Glass Works at Varanasi, in a shipment comprising of 253 bales of mulberry raw silk from Korea and also being of the view that the invoice numbers evidence transportation of goods from Varanasi to Bangalore to the premises of respondent Rajat Gupta and it was a valid transportation of a validly imported goods of foreign origin and having paid all duty liability and other fees, and therefore, did not either deserve to be confiscated or persons involved in the goods deserved to be mulcted with penalty under Section 112 of the Act and in this view of the matter, set aside the confiscation order and penalties and has held that the provisions of Section 123 of the Act are not attracted to the goods in question and inevitably the tribunal has to allow the appeal in the following terms: “In view of our findings, the order is set aside and appeals allowed with consequential benefits as prayed as per Supreme Court decision in case of Northern Plastics 1999 (33) ELT 3 (SC).” 9. It is aggrieved by this order, the present writ petition by the commissioner of customs, having not availed of the normal remedy of a reference in terms of Section 130A of the Act. 10. It is aggrieved by this order, the present writ petition by the commissioner of customs, having not availed of the normal remedy of a reference in terms of Section 130A of the Act. 10. Preliminary objection raised by Sri Chidananda Urs, learned counsel for the respondent proceeds on the premise that a writ petition of this nature is not maintainable; that the jurisdiction of the high court to entertained a petition under Articles 226/227 of the Constitution of India is well circumcised and not only the scope of the writ jurisdiction as indicated in the Articles themselves but also by a catena of cases and authorities decisions of the Supreme Court and therefore would vehemently urge that the writ petition should not at all be entertained and should be rejected in limine. 11. The authorities relied upon by the learned counsel for the respondent in support of this submission are as under: TITAGHUR PAPER MILLS CO. LTD., AND ANOTHER vs. STATE OF ORISSA AND ANOTHER ( AIR 1983 SC 603 ) COMMISSIONER OF CUSTOMS & CENTRAL EXCISE vs. HONGO INDIA (P) LTD. (2009 [236] ELT 417 [SC]) 12. It is further submitted that a person like commissioner of customs, who is a statutory authority and who is expected to be well conversant with all the statutory provisions, cannot be permitted to bypass the statutory remedy of Section 130A of the Act and to approach this court by invoking writ jurisdiction and in the wake of the commissioner having not availed of the statutory remedy, the writ jurisdiction should not be permitted to be availed of by the Commissioner for the very purpose which the commissioner could have achieved by seeking for a reference in terms of Section 130A of the Act. 13. 13. Submission of learned counsel for the respondent is on the premise of the delay and laches i.e. the writ petition is preferred more than one year seven months after the expiry of the period of limitation as provided in terms of Section 130A of the Act and that no premium can be placed on such an indolent act of the commissioner – a statutory authority – and that too to the detriment of the respondent, in whose favour certain rights have been conferred in terms of the order passed by the tribunal such as not only to allow the claim to the confiscation of goods as his own goods, but also having relived him of the liability of personal penalty, due to passage of time i.e, by the expiry of the period for seeking reference in terms of Section 130A of the Act, and such rights having crystallized and having attained finality, this court should not entertain this writ petition filed by the commissioner of customs to disturb the order of the tribunal to the detriment of the respondent; that the writ jurisdiction should not be permitted to be misused by the commissioner in such a circumstance, particularly to make up for a lapse, if any, on the part of the commissioner in not diligently taking care of the interest of the revenue, if at all, by filing an application seeking for a reference within the period of limitation in terms of Section 130A of the Act. 14. We shall first deal with the preliminary objection raised by the learned counsel for the respondent and then will take up the scope of examination and if there is any need or necessity to interfere with [the order passed by the tribunal] in exercise of writ jurisdiction. 15. 14. We shall first deal with the preliminary objection raised by the learned counsel for the respondent and then will take up the scope of examination and if there is any need or necessity to interfere with [the order passed by the tribunal] in exercise of writ jurisdiction. 15. Submission of Sri Hariprasad, learned central government standing counsel is that the writ petition had come to be filed bona fide in the wake of certain changes that were in the offing due to amendment to the relevant provisions of the Act; that a reference should not have ben sought within the period and therefore the commissioner being of the bona fide impression to the subject order being even amenable to correction within the scope of Article 226 of 227 of the Constitution of India, has caused this present writ petition; that it is not any prosecution lacking bona fides or with any mala fides, but is a bona fide prosecution even with jurisdiction; that the commissioner is quite conscious of the limitation that enters the picture if the department had not availed of the statutory remedy, but has approached the court only invoking the writ jurisdiction with regard to the merits of the matter within the scope of writ jurisdiction and in praying for relief, if it is amenable within the jurisdiction of Articles 226 and 227 of the Constitution of India, and not beyond and at any rate on par with the court’s advisory jurisdiction under Section 130A of the Act. 16. Mr. Chidananda Urs, learned counsel for the respondent has drawn our specific attention to the Judgments of the Supreme Court in the case of TITAGHUR PAPER MILLS CO. LTD., AND ANOTHER (Supra) as also the recent Judgment of the Supreme Court in the case of COMMISSIONER OF CUSTOMS & CENTRAL EXCISE vs. HONGO INDIA [P] LTD. [Supra]. 17. 16. Mr. Chidananda Urs, learned counsel for the respondent has drawn our specific attention to the Judgments of the Supreme Court in the case of TITAGHUR PAPER MILLS CO. LTD., AND ANOTHER (Supra) as also the recent Judgment of the Supreme Court in the case of COMMISSIONER OF CUSTOMS & CENTRAL EXCISE vs. HONGO INDIA [P] LTD. [Supra]. 17. It is vehemently contended that the scope of examination in a petition under Articles 226 and 227 of the Constitution of India is considerably restricted and the salutary principle while exercising writ jurisdiction is to decline to exercise the jurisdiction whenever the person invoking the writ jurisdiction has a statutory remedy of appeal, and more so, if the statutory remedy is one to the High Court itself and it is for this purpose, the Judgment of the Supreme Court in TITAGHUR PAPER MILLS’ case [supra] is relied upon and to point out that the petitioner – Commissioner of Customs who had a statutory remedy in terms of section 130A of the Act for seeking a reference to this court had either failed to seek for a reference or neglected to seek for one and such a person should not be permitted to come back to this court through the backdoor method of presenting a petition under Articles 226 and 227 of the Constitution of India. 18. It is also submitted by placing reliance on the Judgment of the Supreme Court in HONGO INDIA [P] LTD., case [supra], that when a reference under section 130A of the Act is not possible after the expiry of a period of 180 days from the date of the order passed by the Tribunal and if the Commissioner is prohibited from invoking the jurisdiction of this court even under section 130A of the Act, it is an a fortiori case that this court should not entertain the writ petition whether under Article 226 or under Article 227 of the Constitution of India. 19. We have bestowed our anxious consideration to the submissions made at the Bar, particularly, the preliminary objection raised by Sri Chidananda Urs, learned counsel for the respondent. 20. 19. We have bestowed our anxious consideration to the submissions made at the Bar, particularly, the preliminary objection raised by Sri Chidananda Urs, learned counsel for the respondent. 20. As to whether the provisions of section 5 of the Limitation Act which enables a court to extend the period of limitation, in the sense, to condone the delay beyond the period of limitation otherwise prescribed is made applicable or not to other enactments under which a separate period of limitation is prescribed under the very enactment and is not one covered by the Limitation Act, the applicability or otherwise of section 5 of the Limitation Act has been considered by the Supreme Court in HONGO INDIA [P] LTD., case [supra] and it was opined that such question has to be answered by necessarily liking into the provisions of the particular enactment which has prescribed a separate or independent period of limitation for preferring an appeal, revision or a reference and there cannot be a generalization of the applicability or otherwise of section 5 of the Limitation Act to all situations. 21. 21. However, the Supreme Court having taken the view that in respect of a reference under section 35H of the Central Excise Act as it stood prior to the amending Central Act No.49 of 2005 which changed the statutory position regarding limitation with effect from 28.12.2005, the position was that limitation of 180 days had been prescribed under the Central Excise Act and there being no further enabling provision for condonation of delay as is to be found in the other provisions such as statutory provision relating to an appeal to the Tribunal or an appeal to the High Court as amended subsequently of having prescribed a possible extension for further period of thirty days and such a provision being conspicuously absent in unamended section 35H[1] of the Central Excise Act, it should be construed that the period of limitation cannot be extended beyond 180 days and thereafter it is as though the High Court cannot entertain a reference application under section 35H of the Central Excise Act and pointing out that the provisions of section 130A of the Customs Act are in pari material with section 35H [1] of the Central Excise Act at the relevant point of time, submission is that a reference in terms of section 130A of the Act are up to the expiry of 180 days which is questioned in the writ petition could not have been subject matter of reference under section 130A of the Act and if so the writ petition should not be entertained etc., 22. We are quite conscious of the Judgment of the Supreme court and even while the Supreme Court had observed in this Judgment that the question as to whether the provisions of section 5 of the Limitation Act is to be made applicable or otherwise is a question which has to be examined in the context of each enactment and even assuming that the Customs Act is different from the Central Excise Act, we do accept the argument that the ratio laid down by the Supreme Court in HONGO INIDA [P] LTD., case [supra] will be equally applicable to the provisions of section 130A of the Act. 23. 23. But, the question before us is not as to whether we should entertain a reference in terms of the provisions of section 130A of the Act, but what should be done with reference to the writ petition that is before us. 24. Though Sri Chidananda Urs, learned counsel for the respondent has pointed out the situation of the court being not in a position to entertain a reference at this point of time, in our considered view, that is not the end of the matter. It is well settled on authority that the writ jurisdiction under Articles 226 and 227 of the Constitution of India is not the same as either the appellate jurisdiction or revisional or reference jurisdiction which is an express jurisdiction conferred on the High Court under the respective enactments and the High Court virtually acts as a Tribunal under these enactments for examining such matters, whereas in writ jurisdiction, the High Court functions as a constitutional court the power conferred on it under the Constitution of India and it is not the power which is either circumcised or to be regulated by other statutory provisions, until and unless, a special law to this effect has been made in terms of Part-14A of the Constitution of India and here again in terms of the Judgment of the Supreme court even in respect of such Tribunals specially constituted and providing for exclusion of the original jurisdiction of the High Court as provided for under Articles 323A and 323B of the Constitution of India and if the law as declared by the Supreme Court in L CHANDRA KUMAR vs. UNION OF INDIA reported in 1997 [92] ELT 318[SC] and later followed in many other cases is to be applied, it is obvious that the High Court retains the jurisdiction of superintendence under Article 227 of the Constitution of India even in respect of the Tribunal created under Article 323B of the Constitution of India and if so, in a matter of this nature, where the CEGAT being not even such a special Tribunal and being a mere Tribunal created in terms of the provisions of the Customs Act, it is an a fortiori case that a petition under Article 227 of the Constitution of India is very much tenable. 25. 25. We are of the considered view that the Judgments relied upon by Sri Chidananda Urs, learned counsel for the respondent in support of the submission that the writ petition is not tenable while does not expressly lay down, in fact, only lays down the principles to guide or regulate as to in what circumstances the High Court should entertain a petition under Article 226 or Article 227 of the Constitution of India and what should be the guiding factor, while that again is on sound settled principles to guide the exercise of the jurisdiction, the jurisdiction being a discretionary jurisdiction and within the discretion of the High Court, it is only the manner of exercise of the jurisdiction which is sought to be regulated or guidelines provided for, Ultimately, as to whether the discretion is to be exercised in favour of the petitioner invoking the jurisdiction is an aspect which essentially depends only on the facts and circumstances of the particular case, no doubt in the background of the relevant statutory provisions governing the case on hand, but ultimately the entertainment of the petition is always in the sound discretion of the High Court and that discretionary jurisdiction has not been taken away by any Judgment of any court nor can it be so. It is the jurisdiction conferred on the High Courts under the Constitution and until and unless the Constitution itself is amended to place an embargo or embargo is in terms of part-14A of the Constitution of India and to the limited extent interpreted and as declared by the Supreme Court in L CHANDRA KUMAR’s case [supra], no further limitation or impediment can be read into. 26. It is for these reasons and particularly, having regard to the facts of the present case, which we shall indicate here under, we are inclined to reject the preliminary objection regarding the tenability of the petition and would examine the merits of the petition albeit within the scope of the petition under Article 227 of the Constitution of India and not as though it is a reference in terms of section 130A of the Act. 27. 27. The factual position in the present case is as indicated earlier certain seized articles which have been confiscated and penalties levied on persons involved in the transportation or movement of the goods which in the opinion of the adjudicating officer was not properly explained for the licit important and therefore had acquired the character of prohibited goods and the Tribunal taking a contrary view that the respondent herein had more or less made up the case as claimed by him that it was a licit importation with reference to certain documents said to be relied upon by the respondent, to indicate that it was a case which had been cleared through the customs port and after paying necessary duty. The bone of contention is only on this aspect of the matter and nothing beyond. While this may be an aspect which incidentally touches/depends upon the merits of the case also, what we have found is even at the earliest point of time when the respondent had been issued with the show cause notice, the respondent had while claimed that he was involved with the goods had nevertheless disowned the goods, in the sense, that it has already been sold to another party who in turn had sold to yet another party and he no more had title to the goods in question. 28. It is also well settled legal and constitutional proposition that a writ court entertaining a petition under Article 227 of the Constitution of India and exercising the superintendence jurisdiction cannot overlook an obvious illegality committed by the subordinate court or the Tribunal within its jurisdiction, that the statutory provision misinterpreted and misread is a situation which warrants for correction by the High Court even in a petition under Article 227 of the Constitution of India. 29. It is not appreciation of a set of facts or evidence available on record, but it is setting the legal position, setting right an incorrect order not permitted in terms of the statutory provisions or constitutional provisions and which cries for correction. 29. It is not appreciation of a set of facts or evidence available on record, but it is setting the legal position, setting right an incorrect order not permitted in terms of the statutory provisions or constitutional provisions and which cries for correction. On this aspect of the matter, on a perusal of the order passed by the Tribunal, we find that the Tribunal has not only refereed to inapplicable statutory provisions to the fact situation and even wrongly applied or understood the statutory provision, but also has called in aid authorities not relevant to the fact situation to reverse the order passed by the adjudicating authority. 30. The piethora of cases relied upon by the appellant before the Tribunal and dealt with by the Tribunal to justify its conclusion, in our considered view, are not cases relevant for the facts of the present case and particularly the case law that has developed in the context of the provisions of section 123 of the Act which is nothing but a rule of procedure. It is nobody’s case in the present situation that the order passed is one with reference to the provisions of section 123 of the Act. In fact, the presumption in terms of section 123 of the Act is not even needed in the present situation as it is also the case of the respondent that the goods in question were of foreign origin and the stand was that it had been licitly imported. The Tribunal referring to the case law and the legal position that has emerged with reference to the cases decided in the context of the provisions of section 123 of the Act and basing its decision to reverse the order of the adjudicating authority is nothing short of an act of perversity by calling in aid the legal position which is not even attracted to the fact situation of the case. 31. To compound this, if the Tribunal proceeds on an erroneous understanding of the provisions of section 123 of the Act, even as per the development of law in terms of the decided cases and wrongly applies that, it is inevitable that we cannot ignore an order of the Tribunal which is passed in such manner and involving such infirmities when it is brought to our notice. 32. 32. We are quite conscious that the respondent is very agitated and aggrieved and if the order of the Tribunal should be disturbed in a petition of this nature and at this point which could possibly not only disentitle the respondent to lay its claim to the goods which had been confiscated under the order passed by the adjudicating authority but would also revisit the respondent with penalties as had been levied by the adjudicating authority. It is not with reference to the consequences of a result a legal position is examined but the consequence follows when once legal position is clarified or laid down. 33. The proceedings in so far as the goods are concerned, leading to a confiscation in case it is a prohibited goods’ within the meaning of section 2[33] of the Act and which includes all such goods which have been imported into the country without observing or following the procedure contemplated for importation of the goods into the country and includes non-payment of the customs duty and an order of confiscation which is an order in respect of the offending goods is into eh nature of order in rem and not an order in personam, in the sense, the character of the goods as a prohibited goods remains same in whomsoever’s hands it is found and the mere fact that the respondent either owns or disowns the goods cannot alter the character of the goods if it is prohibited goods and therefore it matters little as to whether the order says that the goods are confiscated in the hands of the respondent and the show cause notice had been issued to the respondent for the purpose of confiscating the goods and other consequences. It is only with regard to the levy of penalty which is in personam a stand of the respondent can have some bearing. 34. In so far as the character of the goods whether it remains a prohibited goods or gets out of this taint and can be characterized as a normal goods is concerned, it is dependent on the manner in which it has entered the country and it has gone through. 34. In so far as the character of the goods whether it remains a prohibited goods or gets out of this taint and can be characterized as a normal goods is concerned, it is dependent on the manner in which it has entered the country and it has gone through. Here again, the inconsistent stand on the part of the respondent in claiming the ownership of the goods at one breadth and later disowning it by saying that the goods had already been sold to Hukkumchand but found in the godown of other person namely Bechan Misra and said Bechan Misra claiming that he was only an agent for the respondent and such inconsistent statements only reveal a clear scheme of the cover up operation amongst the three persons involved and the inconsistent stands not only with regard to the ownership of the goods which is emphatically stated in the reply as under: “………………..Thus, by no stretch of imagination my client will be the owner of the goods.” butthe next sentence reading. “The confiscation in the hands of my client is wrong and unjustifiable.” Only betrays the uncertainties of the nature of the goods and also the confused state of mind of the respondent vis-à-vis the goods. This is only a circumstance to indicate the involvement of the respondent with the goods but that does not in any way alter the character of the goods if its is prohibited goods and leading to confiscation. 35. This is only a circumstance to indicate the involvement of the respondent with the goods but that does not in any way alter the character of the goods if its is prohibited goods and leading to confiscation. 35. Of course, there was a possibility of the goods being permitted to be redeemed to the person in whose hands it was seized or a person who can lawfully lay claim on payment of redemption fine if it is not a notified goods, is a possibility which we are aware, but we find that further standoff the respondent that if at all any contravention has taken place, it can only be in the hands of the imported, namely, M/s Prashant Glass Works at Varanasi and the respondent cannot be expected to satisfy the licit importation of the goods is another circumstance to indicate the inconsistent stand and in this state of affairs, the provisions of section 125 of the Act to allow an option to pay redemption fine in lieu of confiscation cannot even arise as it is not clear as to who can lay the claim to the goods with each person owning or disowning the goods depending upon the convenience and not because of a bona fide claim. 36. The Appellate Tribunal though has made a farce of examining the material said to have been placed by the respondent before it, has given a go by to it and has placed reliance on the legal position as it emerges on an examination of the case law with reference to the provisions of section 123 of the Act which is not even attracted to the present situation and this is the reason why we find the order of the Tribunal is not based on relevant material evidence on record, but without any basis and with reference to the statutory provision not even attracted and even in the exercise of jurisdiction under Article 227 of the Constitution of India, we feel compelled to correct such an order. 37. 37. Though Sri Chidananda Urs, learned counsel for the respondent has vehemently contended that the proposal for confiscation was in the hands of the respondent and further that the respondent has unpaid seller’s lien on the goods and to that extent, he could still retain the possession, and places reliance on the order of the Commissioner also to this effect, we have after perusing the reply to the show cause notice find that the respondent lacked bona fides totally in coming with the various versions for different purposes and while for the purpose of confiscation would lay claim to the goods and would like to claim it back if the order of confiscation should fall to ground, when it comes to the question of levying penalty as a person involved with dealing of a prohibited goods would conveniently resort to the stand of the goods having been sold to another person and that person in turn also having further sold, he should not be penalized etc... 38. The defence of limitation coming in the way of the examination of the correctness or quality of the order of the Tribunal in the jurisdiction of this court under Article 227 of the Constitution of India, in our opinion, cannot stand scrutiny for the reason that the order for confiscation is an order passed in rem and in larger public interest, for discouraging or dissuading violations of the Customs Act and it is also fully justified in the present fact situation having regard to the conduct of the respondent and other persons involved with the goods with their inconsistent/shifting stand and alternatively owning or disowning the goods. 39. A proceeding for confiscation is not necessarily in the nature of an adversary proceeding nor is it in the nature of criminal proceedings. It is not necessary that the order is one which has to stand scrutiny on the touchstone of proof beyond reasonable doubt, but this is only on the touchstone of preponderance of probabilities. 39. A proceeding for confiscation is not necessarily in the nature of an adversary proceeding nor is it in the nature of criminal proceedings. It is not necessary that the order is one which has to stand scrutiny on the touchstone of proof beyond reasonable doubt, but this is only on the touchstone of preponderance of probabilities. The Tribunal proceeding to apply irrelevant principles to reverse the order passed by the adjudicating authority is a reason which compels us to exercise our jurisdiction under Article 227 of the Constitution of India even though the order of the Tribunal when it is brought to our notice in the writ jurisdiction was already about a year and seven months old and at any rate about one year beyond the period of limitation for invoking our jurisdiction under section 130 of the Act. 40. The observation of the Tribunal quoting the Judgment of the Supreme court in the context of basic canon of criminal jurisprudence as reflected in the case of AMBA LAL vs. VOI reported in 1983 ETR 1935 [SC] which reads thus: “Therefore, in the present case, as in all such cases, of goods not covered by Section 123 of the Customs Act, 1962, the onus is in the department to prove the case as a fundamental principle of Criminal Jurisprudence, or basic canons of jurisprudence, the phrase used in D.Bhoormul’s case [supra] which the Adjudicator is relying upon.” is uncalled for, irrelevant reliance as in the present case the goods were of foreign origin was not disputed and it was an attempt on the part of the respondent to make good the licit importation of the goods which had failed and a presumption as indicated therein was never available or attracted to the facts of the case and the Tribunal proceeding to orders on such erroneous assessment and relying upon the case law not relevant to the facts is a situation warranting correction at our hands even under the jurisdiction of Article 227 of the Constitution of India. 41. Mr. 41. Mr. Chidananda Urs, learned counsel for the respondent has drawn our attention to the following decisions to contend that the writ petition is not tenable as the Commissioner of Customs is enabled to prefer an application for reference in terms of section 130A of the Act and he is not enabled to file a writ petition either under Article 226 or under Article 227 of the Constitution of India under the Customs Act and therefore the writ petition should not be entertained at all in the first instance. COMMISSIONER OF C. EX. CALCUTTA – II vs. CACUTTA TRADE CORPORATION [2002 [143] ELT 259 [CAL.]] THE STATE OF ASSAM AND OTHERS VS. GARODIA BROTHERS & ANOTHER [1978 [41] STC 402 [GAU]] THE ASSISTANT COMMISSIONER OF TAXES AND ANOTHER vs. RANGLAL RAMESWAR SARAUGI [1078 [41] STC 408 [GAU]] CALCUTTA GAS COMPANY [PROPRIETARY] LTD., vs. STATE OF WEST BENGAL AND OTHERS [ AIR 1962 SC 1044 ] CHIEF CONSERVATOR OF FORESTS, GOVT, OF A.P. vs. COLLECTION AND OTHERS [ AIR 2003 SC 1805 ] UNION OF INDIA vs. KAMLAKSHI FINANCE CORPORATION LIMITED [1991[55] ELT 433[SC]] 42. This submission were are rejecting outright for the reason that the writ jurisdiction is not a statutory jurisdiction, it is a jurisdiction conferred on the High Court under Article 226/227 of the Constitution of India and the exercise is in the discretiori of the High Court and not either at the discretion of a respondent or a person who wishes that the jurisdiction should not be exercised to his detriment etc.,. 43. Be that as it may, if the Commissioner of Customs becomes a petitioner in a petition under Article 226/227 of the Constitution of India, it does not partake the character of a petition not permitted in law or prohibited under any provisions of the Customs Act. This is a jurisdiction undoubtedly not conferred under the Customs Act, but the jurisdiction conferred on the High court under the Constitution and the only limit of this jurisdiction is that it will have to be exercised within the scope of the particular jurisdiction whether under Article 226 of Article 227 of the Constitution of India and cannot be equated with the jurisdiction which the High Court would otherwise exercise in terms of section 130A of the Act. 44. 44. We are quite conscious of this limitation and we have examined the petition within the scope of Article 227 of the Constitution of India and therefore the submission does not merit acceptance nor the Judgments relied upon can be of any avail to hold that the writ petition itself is not tenable in law. 45. Sri Chidananda Urs, learned counsel for the respondent has also placed reliance on the following decisions to vehemently urge that in view of the availability of the statutory remedy, this writ petition should not be entertained. SADHANA LODH vs. NATIONAL INSURANCE COMPANY LTD., [AIR 2003 SC 1561] MAHANAGAR TELEPHONE NIGAM LTD., vs. CHAIRMAN, CBDT [2004 [168] ELT 147 [SC]] NIVARAM PHARMA PVT LTD., vs. CEGAT, MADRAS [2006 [205] ELT 9 [Mad]] GOODEARTH STEELS PVT. LTD., vs. CEGAT, NEW DELHI [2006 [199] ELT 605 [ALL]] RAIPURGRINDING INDUSTRIES CORPORATION vs. UNION OF INDIA [2002 [144] ELT 9 [DEL]] 46. This argument again is a general rule and this court normally will not entertain a writ petition in the wake of statutory remedy being available to the petitioner, but a rule having an exception that this is also a rule and not a prohibition on the exercise of writ jurisdiction by the High Court. The jurisdiction is discretionary and the mere availability of alternative remedy is not absolute bar on the exercise of writ jurisdiction which is well settled proposition in law. 47. Sri Chidananda Urs, learned counsel for the respondent has relied upon the following decisions of the Tribunal to contend that there is no need for interfering in the present situation on the merits of the order passed by the Tribunal. RANGOLI SAREES LTD., vs. COMMISSIONER OF CUSTOMS [2001 [131] ELT 71 [T]] SAJJAN INDIA LTD., vs. COMMISSIONER OF CUSTOMS [1999 [111] ELT 903 [T]] DINANATH MAURYA vs. COMMISSIONER OF CUSTOMS [2001 [131] ELT 203 [T]] 48. It is not necessary for us to go into these orders of the Tribunal, as in the first instance, it is highly improper to cite an order of the Tribunal before the High Court and secondly while it does not bind the High Court nor can have any persuasive value. It is not necessary for us to go into these orders of the Tribunal, as in the first instance, it is highly improper to cite an order of the Tribunal before the High Court and secondly while it does not bind the High Court nor can have any persuasive value. We have, nevertheless, examined these decisions for whatever they are worth, but we find that even on the discussion a indicated above, the order of the Tribunal is one which warrants for correction in this writ petition for the reasons already indicated above. It is therefore, we are of the view that these decisions in no way advances the case of the respondent. 49. One another contention urged by Sri Chidananda Urs, learned counsel for the respondent is regarding the sale of the seized goods even before passing an order of confiscation and submission is that it has invalidated the sale and therefore if the goods are required to be restored in terms of the order passed by the Tribunal, it is no good for the department to say they can instead hand over the sale proceeds to the respondent in lieu of the goods themselves. 50. It is also submitted with reference to the provisions of section 150 of the Act reading as under: “150. Procedure for sale of goods and application of sale proceeds: [1] Where any goods not being confiscated goods are to be sold under any provisions of this Act, they shall, after notice to the owner thereof, be sold by public auction or by tender or with the consent of the owner in any other manner. [2] The proceeds of any such sale shall be applied- [a] firstly to the payment of the expenses of the sale, [b] next to the payment of the freight and other charges, if any, payable in respect of the goods sold, to the carrier, if notice of such charges ha been given to the person having custody of the goods. [c] next to the payment of the duty, if any, on the goods sold. [d] next to the payment of the charges in respect of the goods sold due to the person having the custody of the goods. [c] next to the payment of the duty, if any, on the goods sold. [d] next to the payment of the charges in respect of the goods sold due to the person having the custody of the goods. [e] next to the payment of any amount due from the owner of the goods to the Central Government under the provisions of this Act or any other law relating to customs. And the balance, if any, shall be paid to the owner of the goods.” That the sale effected without giving proper notice or opportunity to the owner of the goods is void sale and if so the petitioner cannot contend that in lieu of restoring the goods the sale proceeds will be given to the owner of the goods. 51. While this submission proceeds on an assumption that the writ petition is only to be dismissed and unfortunately for the respondent, we have found this is a fit case for allowing the writ petition, we have, nevertheless, examined a possibility of an order directing the authorities to pass an order in terms of section 125 of the Act. Here, we find that the restoration of the goods on payment of redemption fine is only in favour of the owner of the goods and with none of the persons laying claim to the ownership of the goods and on the other hand, being only eager to disown the goods, there is no way of any person redeeming the goods even on payment of redemption fine in terms of section 125 of the Act and in this situation the argument that the sale becomes void etc, in terms of the provisions of section 150 of the Act becomes more an academic question than warranting examination in the present case. 52. In the result, we allow this writ petition, set aside the order passed by the Tribunal and restore the order passed by the adjudicating authority in its entirety. 53. Rule issued and made absolute.