TMI Blog2010 (1) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India, even if this writ petition is filed within the period of limitation - Decided against the petitioner - 35318 of 2008 , 37168 of 2009 - - - Dated:- 22-1-2010 - P.R. Raman and P.S. Gopinathan, JJ. REPRESENTED BY : Shri E.K. Nandakumar, for the Petitioner. Shri Tojan J. Vathikulam, S.C., C.B. Excise, for the Respondent. [Judgment per : P.R. Raman, J.]. - When W.P.(C) No. 35318 of 2008 was taken up for hearing, W.P.(C) No. 37168 of 2009, though not listed today, on agreement between the parties was called up, since the question raised in both the writ petitions is one and the same. 2. For the purpose of appreciation of question of law arising for consideration, it will be sufficient to refer to the facts relating to W.P.(C) No. 35318/2008. 3. Petitioner is a partnership firm, registered as a service provider. The petitioner submits that the petitioner has been providing clearing and forwarding agent s service to Abbot India Ltd., in terms of specific agreement between the parties. Ext.Pl produced for identification. Ext.P2 is another agreement. According to the petitioner, service tax is not payable on the reimbursed amount and the service tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered by a Division Bench. Accordingly, we heard the matter. 6. W.P.(C) No. 37168 of 2009 was also filed in similar circumstances. 7. Learned counsel Sri. Jayasankar appearing on behalf of the petitioner submits that an alternate remedy by way of an appeal is not a bar for entertaining a writ petition under Article 226 of the Constitution of India. According to him, at least when situation warrants and there are exceptional circumstances, remedy by way of writ petition under Article 226 of the Constitution of India is still available. The petitioner placed reliance on a decision of the Madras High Court in Rayalseema Constructions and Another v. Deputy Commercial Tax Officer, Mannady Division, Madras-I, and Others - (1959) 10 STC 345 and two decisions of the Supreme Court in K.Venkatachalam v. A.Swamickan and Another - (1999) 4 SCC 526 and Deputy Commercial Tax Officer, Madras v. Rayalaseema Constructions - (1966) 17 STC 505. Per contra, learned senior standing counsel Sri.John Varghese would contend that it is now well settled that though the alternate remedy by itself may not be a bar for invoking the power under Article 226 of the Constitution of India it has been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate remedy, the High Court will not normally entertain an application under Article 226 of the Constitution of India, but where the High Court has chosen to exercise its jurisdiction the Apex Court will not interfere with the jurisdiction by the High Court. 10. In K. Venkatachalam s case (supra) the Apex Court held that High Court s jurisdiction under Article 226 of the Constitution of India, unless barred, is wide and covers all violations of the law or the Constitution when recourse cannot be had to other remedies provided by law. The Apex Court in C.A. Abraham v. Income-tax Officer, Kottayam and another (AIR 1961 SC 609) held that the Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income-tax authorities, and a person who is aggrieved by an order of the Appellate Assistant Commissioner imposing a penalty, cannot be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under Article 226 when he had adequate remedy open to him by way of an appeal to the Tribunal. 11. The Apex Court in Surya Dev Rai v. Ram Chander Ram Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. Though an alternate remedy may not be a bar for interference under Article 226 of the Constitution, being a constitutional remedy, the High Court will sparingly exercise the jurisdiction by way of self imposed restriction. 13. In the case on hand there is no dispute that the petitioner had the right to file an appeal against the order impugned in this writ petition. But, the period prescribed under the Statute in filing the appeal has expired even beyond the period within which the authority could condone the delay. So, when his remedy of filing an appeal is thus barred, can he invoke the extra-ordinary jurisdiction under Article 226 of the Constitution of India is a real question that arises for consideration? 14. This Court in Prasad v. State of Kerala - 1999 (2) KLT 531 considered similar circumstances arising under the Toddy Workers Welfare Fund Contribution Act. An order was passed by the Welfare Fund Inspector under Section 8(1) of the Act and it provides an appellate remedy to the Government within 60 days from the date of receipt of the order. The appeal was preferred after a long delay. The said appeal was rejected by the Government, which was challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there is no inherent right of appeal under the Act and the Government has no power, express or implied, to condone the delay and entertain an appeal. 17. Yet in another case, Assistant Commissioner of Central Excise v. Krishna Poduval [2005 (4) KLT 947 = 2006 (1) S.T.R. 185 (Ker.)], where also a similar question arise for consideration under the Finance Act, 1994. That also relates to the payment of service tax, interest and penalty under the Finance Act, 1994. When notices were issued to the parties as to why service tax quantified thereunder along with interest and penalty should not be recovered and ultimately, show cause notice culminated in demand of service tax. The same was challenged in an appeal field before the Commissioner of Central Excise. That was dismissed, since the appeal itself was filed beyond the period prescribed under the Act and even the time within which to condone the delay had expired. Therefore, the appellate authority had no power to condone the delay in filing the appeal beyond the maximum period prescribed under the Act and that appeal was preferred beyond the maximum period within which it should condone the delay. Consequently, the appeal was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India as it would amount to resurrect a cause of action. 19. We may even say that even if writ petition was filed under Article 226 of the Constitution of India at a time when an appellate remedy is not barred, this Court could certainly say it would not entertain a writ petition, if the reliefs sought for in the writ petition are available to be granted by invoking the statutory remedy provided under the Statute. If that be so, the case of a person who failed to invoke statutory remedy cannot be better placed so as to invoke the extraordinary jurisdiction. 20. In paragraph 8 of the decision reported in Asst. Commissioner of Central Excise s case (supra) the Division Bench of this Court, after referring to the decision in Maheswary Fire Work Industries case (supra), held that the power to condone the delay of 30 days provided under the Statute cannot be made applicable to the High Court while exercising jurisdiction under Article 226 of the Constitution was not acceptable as it did not contain any reason. This Court also held that all the remedies of the respondents have come to an end wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution and not by the statutory authority. In the same case if writ petition is filed though the appellate remedy is barred by the Law of Limitation then it is in consequential for the reason as stated above. But as we could see the observation of the Division Bench in the contextual situation arising for consideration was only whether the party whose right is barred because it was filed beyond the period prescribed under the Statute and whether that right can be resurrected by invoking the jurisdiction under Article 226 of the Constitution. The above decision when understood in the above context, we find the same is supported by the various pronouncements of the Apex Court and of this Court. The decision has to be read as a whole and in the context in which it arose for consideration. 22. In Collector of Central Excise, Calcutta v. M/s. Alnoori Tobacco Products and Another [JT 2004 (5) SC 593 = 2004 (170) E.L.T. 135 (S.C.)] it was held that courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Eu ..... 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