TMI Blog2015 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... and refusal to intervene would result travesty of justice. But the jurisdiction of writ of certiorari should not be converted into the court of appeal or indulge into reappreciation of the evidence or evaluation of the evidence or correction of the errors were two views are possible. It is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. - limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay cannot be condoned beyond the period of 90 days, i.e., 60 days being the prescribed period and further discretion to condone the delay in 30 days. But the learned counsel for the petitioner placed reliance upon the another decision of the Division Bench of this Court in the case of Amitara Industries Ltd. vs. Union of India decided on 30.01.2013 passed in SCA No.6069/11 and contended that as per the view taken in the said decision, the delay can be condoned beyond the period of 90 days provided there is a good case on merits and the learned counsel for the petitioner also relied upon other decisions of this Court including the decision in the case of D.R. Industries Ltd. vs. Union of India reported at 2008 (229) ELT 24 (Guj). The Division Bench hearing SCA No.18542/14 found that the matter is required to be referred to the Larger Bench for decision. Hence, the aforesaid questions were formulated and the matter has been referred to the Larger Bench. 3. It may be recorded that when SCA No.13530/14 came up before the another Division Bench of this Court, it was brought to the notice of the said bench that the question involved in the petition for the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion arises for consideration in this appeal is as to whether the delay in filing the appeal under Section 35 of the Central Excise Act, 1944 would be condoned beyond a period of 90 days. The law provides that appeal can be filed before the Commissioner (Appeals) within a period of 60 days from the date of communication to him of such decision or order of the Central Excise Officer. The first proviso to Section 35 lays down that if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow the appeal to present within a further period of 30 days, which means 60 days+30 days = 90 days. Section 35 does not provide condonation of delay or confer any powers for condonation of delay to the Commissioner (Appeals) beyond a period of 90 days. Therefore, the appeal, without delay, could be presented within a period of 90 days and not beyond it. 2. Mr.Dhaval Shah, learned counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in the case of Amitara Industries Limited v. Union of India, decided on 30.01.2013 passed in Special Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court. We make it clear that it shall be open to the Larger Bench to reframe the questions or add further questions, which may be decided by the Larger Bench. We also refer the entire case to the Larger Bench of this Court. 6. Let the record be placed before Hon'ble The Acting Chief Justice on Administrative side for constitution of a Larger Bench. 8. It is true that as per the above referred order, no specific reasons are recorded by the Division Bench for disagreement with the view taken by the other Division Bench of this Court in the case of D.R. Industries Ltd. (supra) as well as Amitara Industries Ltd. (supra) and the views taken in the other matters referred to by the Division Bench in para 2 of the aforesaid order. However, if the tenor of the order is considered, it does appear that the referral bench, in the aforesaid order, did consider the statutory provisions of section 35 of the Act, wherein the period of filing the appeal has been prescribed of 60 days and the power for condoning the delay is provided for 30 days and the referral bench found that section 35 of the Act does not provide for condonation of delay or confer any power to condone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to refer the issue to the Larger Bench in the order dated 11.8.2011 passed by him in the present proceedings vide paragraphs 22, 23, 24 and 25 has observed, thus: 22. As could be observed from the decisions of this Court in cases touching upon the provisions of Sections 242, 249 and 259 of the Panchayat Act on question of challenge to passing of 'no confidence motion' it becomes evident that no bench was specifically invited to examine the issue on framing searching question, but the benches have expressed opinion that appeal would be available under Section 242 of the Panchayat Act for challenging resolution of no confidence. It is also required to be noted that the observations made in other earlier judgments were not cited before the Court. The Apex Court has in case of State of U.P. and another Versus Synthetics and Chemicals Ltd reported in (1991) 4 SCC 139 observed as under: In Jaisri V. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exception when the decision of an appellate court is not binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaking for the Constitution Bench (Union of India v. Raghubir Singh ((1998) 2 SCC 754) learned Chief Justice said : The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore the need for a clear and consistent enunciation of legal principle in the decision of a court. 22. Cardozo propounded a similar thought with more emphasis : I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevances and artificial exceptions unless for some sufficient reasons, which will commonly be some consideration of history or custom or policy or justice Lacking such a reason, I must be logical just as I must be impartial, upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. In our system of judicial review which is part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the laws more pred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requires to be considered by a Division Bench of two Judges or Larger Bench. Therefore even if no reason is recorded for referring the matter there can arise no question of a Larger Bench not being able to consider the matter, because , the process of assignment of work to Benches is purely an internal matter of the High Court governed by these Rules and a matter, which could have been considered by a learned Single Judge, can always be referred for a decision to a Larger Bench. 6. The aforesaid as such clearly go to show that after considering the provisions of Rule 5, the learned Single Judge found that important questions have arisen in the present matter and, therefore, he has opined to refer the matter to the Larger Bench. But we find that the matter does not end there for considering the contention of respondent No.5 on the aspects of maintainability and the reason being that the opinion of the learned Single Judge to refer the matter to the Larger Bench by raising the questions remained as the opinion when the matters were placed before the Hon'ble the Acting Chief Justice on administrative side for placement of the matter to the Larger Bench. The Hon'ble Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided by them. Therefore, they referred the matter back holding that the matter could not have been referred to the Constitutional Bench by two Judges of the Apex Court and consequently directed the placement of the matter before three Judges of the Apex Court. Such are not the fact situation in the present case. In the facts and circumstances of the case, for the reasons recorded by us herein above, we are inclined to adopt the same course as was undertaken by the earlier Full Bench (Larger Bench) of this Court in the case of Nandlal Bavanjibhai Posiya and Ors. v. Director of Agriculture Marketing and Rural Finance Anr. (supra), since we find that as the Special Civil Application, raising questions of law of general importance, has been placed before us, we proceed to decide the same on merits. Under these circumstances, the preliminary contention raised by respondent No.5 fails. (Emphasis supplied) 10. Before we further proceed to examine the question referred to Larger Bench, we find it proper to consider and examine the statutory provisions and also the relevant case law on the point. 11. Section 35 of the Act reads as under: 35. Appeals to [Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Solicitor General for the preposition that there is a presumption about constitutionality of a statute nor is it necessary to refer to or deal with the decisions cited by the learned counsel for the petitioners as regards the burden of justifying differentiation or discrimination. 18. We, therefore, do not find any merit in any of the contentions raised on behalf of the petitioners for challenging the constitutional validity of the proviso to subsection (1) of Section 35 of the Central Excise Act, 1944 in so far as the Parliament has provided for the limitation period of 60 days for filing an appeal before the Commissioner (Appeals) and in so far as the power to condone the delay conferred on the Commissioner (Appeals) is only for a period of 30 days after expiry of the limitation period of 60 days. (Emphasis supplied) However, the Division Bench, while considering the extraordinary cases where an assessee may not be in a position to challenge the order of the adjudicating authority, explaining the delay and the gross injustice done by the adjudicating authority, it was observed by the Division Bench at paragraph 19, as under: 19. As regards the contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce in the contention of the learned counsel appearing for the petitioner that the decision in case of Amitara Industries Ltd. (supra) is not in conflict with the view taken by the earlier decision of this Court in case of D.R. Industries Ltd. (supra) nor it can be said that this Court in the case of Amitara Industries Ltd. (supra) had taken the view that the delay can be condoned beyond the period of 30 days (beyond the period of 90 days from the period of order under challenge). It can rather be said that the Court found it appropriate case being exceptional case of gross injustice on account of statutory provision of maximum limit of 90 days in preferring appeal and therefore, found it proper to exercise the power under Article 226 of the Constitution. 17. Similarly, in the other decision of this Court in the case of Lathia Industrial Supplies Co. Ltd. vs. Commissioner of Appeals and Anr. in SCA No.16182/12, decided on 20.03.2013, the Division Bench of this Court made the observation at para 5, as under: 5. ..... the Court finds that non consideration of the issues would result into gross injustice. Thereafter, the Court proceeded to exercise the power under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided under section 35 of the Act is over and he further submitted that the constitutional power of this Court under Article 226 can neither be controlled by any statutory provision nor can be prescribed in definite language. He submitted that the power under Article 226 of the Constitution of this Court can be exercised by this court in exceptional cases as held by the Division Bench of this Court in the case of D.R. Industries Ltd. (supra), if this Court finds that gross injustice would be caused if no interference is made on account of the expiry of the statutory period of preferring appeal or for the expiry of outer limit of power with the appellate authority for condonation of delay of 30 days. He submitted that therefore, Larger Bench of this Court may not upset the view already taken by the Division Bench of this Court in the case of D.R. Industries Ltd. (supra). 22. Whereas Mr.Parikh, learned counsel appearing for the respondent in one of the matter, contended that the view taken in the case of D.R. Industries Ltd. (supra) cannot be said as fully correct because the Apex Court in the other decisions have declined to exercise the power even in writ jurisdiction on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled. 26. Recently, the decision of the Apex Court in the case of Surya Dev Rai (supra) as was referred to the Larger Bench, on the point as to whether the order of the Civil Court was amenable to the writ jurisdiction under Article 226 of the Constitution or not, and the Larger Bench of the Apex Court in the case of Radhey Shyam Anr. Vs. Chhabi Nath Ors. in Civil Appeal No.2548/09 vide its decision dated 26.02.2015, overruled the decision of the Apex Court in the case of Surya Dev Rai (supra), but only the to the extent that the judicial orders of the Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution and it was held that the jurisdiction under Article 227 of the Constitution is distinct from the jurisdiction under Article 226 of the Constitution. However, the pertinent aspect is that the earlier view taken by the Apex Court in the case of Surya Devi Rai (supra) and Mahendra Saree Emporium (supra) and Salem Advocate Bar Association (supra) that no legislation subordinate to the constitution can whittle down the jurisdiction conferred by the Constitution has been reiterated. 27. The aforesaid discussion would go to show that no le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Jamshedpur reported at 2008 221 ELT 163 (SC), which has been relied upon by the learned counsel Mr. Parikh, the Apex Court was considering the scope and ambit of sufficient cause found in the various statutes and thereby to consider to give the effect of the statutory provision made for limitation. In the said case, the question as to whether the provisions of section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution for exercise of the constitutional power or not was not considered by the Apex Court. Therefore, the contention of the learned counsel Mr.Parikh that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction under Article 226 in a case where the period of 30 days is over cannot be countenanced for the simple reason that whether the High Court should exercise the power to condone the delay after expiry of the period of 30 days while exercising the power under Article 226 of the Constitution is one thing, but whether the jurisdiction of the High Court under Article 226 of the Constitution is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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