TMI Blog2010 (1) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... John Varghese and Tojan J. Vathikulam, Standing Counsel, Central Board of Excise, for the respondents JUDGMENT 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. 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 of 2008. The 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. Exhibit P1 produced for identification. Exhibit P2 is another agreement. According to the petitioner, service tax is not payable on the reimbursed amount and the service tax on the entire commission was paid by the petitioner. The authorities did not accept this contention and exhibit P3 show-cause notice was issued as to why the alleged difference in service tax should not be demanded from him. The petitioner submitted ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Deputy Commercial Tax Officer, Mannady Division, Madras I [1959] 10 STC 345 (Mad) and two decisions of the Supreme Court in K. Venkatach- alam v. A. Swamickan [1999] 4 SCC 526 and Deputy Commercial Tax Officer, Madras v. Rayalaseema Constructions [1966] 17 STC 505 (SC). 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 held by catena of decisions that by way of self-imposed restriction, this court will not entertain any writ petition when such effective appellate remedy is available to the aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not interfere with the jurisdiction by the High Court. In K. Venkatachalam's case [1999] 4 SCC 526, the apex court held that the 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 [1961] 41 ITR 425 (SC); 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. The apex court in Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC 675, after scanning various decisions rendered by the apex court, summed up the principles as to when and at what circumstances the constitutional remedy under art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived 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 abovesaid 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 thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction. 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 extraordinary jurisdiction under article 226 of the Constitution of India is a real question that arises for consideration? 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 before this court. It was held that when the special statute does not contain a provision making the provisions of section 5 of the Limitation Act applicable, the question of condonation of delay invoking that provision does not arise. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005] 4 KLT 947, where also a similar question arose 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 filed 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 rejected by the appellate authority without the same being entertained. Thus, the matter could not be considered on merits. Challenging the order the writ petitions were preferred before this court. In paragraph 7 of the judgment it was held as follows (page 24 in 3 VST): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. In paragraph 8 of the decision reported in Assistant Commissioner of Central Excise's case [2006] 3 VST 21 (Ker); [2005] 4 KLT 947, the Division Bench of this court, after referring to the decision in Maheswari Fireworks Industries case [2001] 121 STC 272 (Mad), 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 when their appeals were dismissed by the Commissioner of Central Excise (Appeals) on the ground of limitation. Even the further appellate authority or this court does not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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 juris- diction 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. In Collector of Central Excise, Calcutta v. Alnoori Tobacco Products [2004] 5 JT SC 593, 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 Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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