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TMI Blog2005 (10) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... e same in appeals before the CCE(A). However, the appeals were dismissed since the same were filed beyond the period prescribed under sub-section (3) of section 85 of the Finance Act, 1994, and the Commissioner (Appeals) did not have power to condone delay beyond the maximum period prescribed under the said section. Although the respondents have a further right of appeal before the Tribunal, they chose to file the writ petitions, the judgments in which are under challenge in these writ appeals, probably realising that the Tribunal also cannot consider the appeal on merits, their first appeal having been dismissed as time-barred with no provision to condone delay beyond the period prescribed under section 85 of the Finance Act. The writ petitions were filed challenging sub-section (3) of section 85 of the Finance Act, 1994, which prescribes a maximum period of three months as the period during which the Commissioner (Appeals) could condone the delay in filing the appeals. They also challenge, inter alia, the imposition of penalty under section 76 of the Act. On those grounds, the respondents prayed for quashing of Exts. P8 and P9 orders in appeal passed by the CCE(A). However, sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act, the remedies of the appellants come to an end just like in the case of a time-barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Article 226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this court under Article 226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Article 226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll close the discussion by recalling what Lord Hailsham has said recently, in regard to importation of the principles of natural justice into a statute, which is a clear and complete code by itself : It is true of course that the Courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the Courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. We do not think that it is necessary to elaborate on the aspect any further since the law as laid down by the Supreme Court as above is eloquent enough to obviate any such necessity. Therefore, we are of opinion that the respondents could not have raised their contentions regarding the imposition of penalty on merits notwithstanding the limitation prescribed under section 85(3) of the Finance Act, 1994, and dismissal of their appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such service-tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service-tax so not levied or paid or short-levied or short-paid or erroneously refunded) : (Provided that where such service-tax as determined under sub-section (2) of section 73, and the interest payable thereon under section 75, is paid within thirty days from the date of communication of order of the Assistant CCE or, as the case may be, the Deputy CCE determining such service-tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the service-tax so determined; Provided further that the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the service-tax determined to be payable is reduced or increased by the Commr.(A), the Tribunal or, as the case may be, the Court, then, for the purpose of this section, the service-tax as reduced or increased, as the case may be, shall be taken in account, Provided also that in ca ..... 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