Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (7) TMI 303 - GUJARAT HIGH COURT

2015 (7) TMI 303 - GUJARAT HIGH COURT - 2015 (326) E.L.T. 532 (Guj.) - Condonation of delay - delay in filing an appeal before Commissioner (Appeals) - Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal - Jurisdiction of High Court - Held that:- No legislation including section .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sdiction may be exercised when the error if not corrected at the very moment may become incapable of correction at the later stage 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urisdiction 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 proviso nor the appeal can be filed beyond the period of 90 days. - petition under Article 226 of the Constitution would not lie for the purpose of condonation of de .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

;(1.) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Articl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cise & Service Tax Appellate Tribunal (Ahmedabad), against the order passed by the Commissioner of Central Excise (Appeals), which arose from the order passed by the adjudicating authority being Order in Original. In the said appeal there was delay of 118 days in preferring appeal and therefore, the Tribunal dismissed the appeal on the ground of delay since as per the Tribunal, there was no power to condone the delay beyond 30 days. Under the circumstances, the said petition. When the appeal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e 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.185 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said SCA No.13530/14 has been listed before the larger bench simultaneously. 4. We have heard Mr.Paresh Dave with Mr.Dhaval Shah, learned counsel appearing for the petitioners in both the matters and Mr.Darshan Parikh appearing in SCA No.13530/14 for the respondents. 5. Mr.Dave, learned counsel appearing for the petitioners, at the outset submitted that the reference could be said as incompetent since there were no divergent views of the two Division Benches of this Court. He submitted that the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

td. (supra) were binding to the subsequent Division Bench of this Court which referred the matter to the larger bench and in his submission even if the referral Bench was of the view that the matter deserves to be referred to the Larger Bench, it was required for the referral bench to record the reasons for disagreement and thereafter only the matter could be referred to the Larger Bench. He submitted that in the order dated 06.01.2015 passed by the referral bench of this Court in SCA No.18542/1 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Larger Bench, the Larger Bench may examine the questions and express the view and the reference may not be termed as incompetent. 7. In order to appreciate the contention, we may record that the referral order of the Division Bench dated 06.01.2015 in SCA No.18542/14 reads as under: "1. A short question 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 la .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

= 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 X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rmaceuticals Private Limited v Union of India and others in Special Civil Application No.14936 of 2012 with Special Civil Application No.14937 of 2012 to Special Civil Application No.14938 of 2012, decided on 14.03.2013, and in the case of Nelly Garments Private Limited v. Union of India and others, decided on 18.12.2014 in Special Civil Application No.14778 of 2014. 3. Apart from the aforesaid decisions, there is another decision in the case of D.R. Industries Limited v. Union of India reported .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

0 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 Ami .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act does not provide for condonation of delay or confer any power to condone the delay to the Commissioner beyond the period of 30 days. But it was confronted that the other decisions of this Court in the case of Amitara Industries Ltd. (supra) and D.R. Industries Ltd. (supra) and other decisions which have been referred to in the referral order, hence the referral Bench formulated the opinion that the matter is required to be referred to the Larger Bench. Therefore, taking the base of the stat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nces, we find it appropriate to answer the question instead observing the reference incompetent. 9. At this stage, we may make useful reference to the observations made by another Larger bench of this Court (Coram : Jayant Patel (one of us), Akil Kureshi & R.M. Chhaya, J.J.) in the case of Jayendrasinh Bhupatsinh Diama vs. State of Gujarat through Additional Secretary (Inquiry) reported at 2012(2) GLR page 1096 wherein also, the preliminary contention was raised that the reference to the Lar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ram Panchayat for 'motion of no confidence' and, therefore, the learned Single Judge could not have referred the matter to the Larger Bench. He submitted that, therefore, the present reference was not called for. The learned Counsel, in support of his submission, relied upon the observations of the Apex Court in the case of Pradip Chandra Parija & Ors. v. Pramod chandra Patnaik & Ors.reported in (2002) 1 SCC, 1. 5. We may record that the learned Single Judge, before opining to re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nches 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

xplained as rule of subsilention "A decision passes subsilentio, in technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to it mind (Salmond on Jurisprudence 12th Edn p.153) In Lancaster Motor Company (London)Ltd V. Bremith Ltd the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union territory of Pandicherry (AIR 1967 SC 1480) it was observed that 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.' Any declaration or conclusion arrived without application of mind cannot be de .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ressed the need for clear and consistent enunciation of legal principle in the decisions of a court. Speaking 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, the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ounds. 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 predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

56, 70 and 84 and the legislative intent in enacting and the jurisdiction powers and purvey of the district appellate committee working under Section 242 and State authority working under Section 249 and 259 of the Panchayat Act in respect of resolution passed by Panchayats against it's Sarpanch, Upsarpanch, President and VicePresidents under Sections 56, 70 and 84 of the Panchayat Act. There are observations and directions both by learned Single Judges and Division Benches in respect of Se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e question as to whether a Single Judge of this Court can directly refer the matter to Larger Bench or it has to be referred only to the Division Bench, the full bench of this Court has in case of Ram Fertilizers Pvt. Ltd and another v. State of Gujarat and another reported in 2001 (1) G.L.H. 698 held as under : "4.1 It will be seen from the provisions of of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any matter before him or question arising in such matter to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 consider .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

place the matter before the Larger Bench. Therefore, if the Hon'ble Acting Chief Justice on administrative side has taken decision for placement of the matter before the Larger Bench, whether the learned Single Judge could refer the matter to the Division Bench or Larger Bench would lose its significance, since ultimately the Hon'ble Chief Justice or the Hon'ble Acting Chief Justice, is the Master of Roster and the power on administrative side cannot be controlled by the contention r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ported in 2002(2) GLR, 1132, wherein more or less similar contention was raised, which has been dealt with by the Larger Bench at paragraph at 5 as under: "At the out set, we consider it appropriate to record that as on the question raised before the learned Single Judge the earlier Single Bench decision of this Court in Narmadaben V. Parmar (supra) was relied on, in which reliance was placed on Division Bench decision of this Court in Chimanbhai R. Patel (supra) which was binding precedent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Pramod Chandra Patnaik & Ors. (supra) when the matters were placed before the Larger Bench, the Bench who heard the reference found that two Judges' Bench could not have referred the matter to the Constitutional Bench and, therefore, did not examine the aspect about the importance of the questions 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pplication, 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 [Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

resented within further period of 30 days. 13. In the case of D.R. Industries Ltd. (supra), the Division Bench of this Court had an occasion to examine the scope and ambit of section 35 of the Act and it was observed at paragraphs 16 to 18, as under: "16. Similarly, whether a person is aggrieved by an order of the Commissioner of Central Excise as the original authority or by an order of the Commissioner (Appeals) as the appellate authority, the period of limitation for approaching the Appe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ute 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed by the Division Bench at paragraph 19, as under: "19. As regards the contention that there may be extraordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

4. The aforesaid shows that the Division Bench of this Court in the case of D.R. Industries Ltd. (supra) did not find any substance in the challenge to the constitutional validity of the provisions of section 35 of the Act and further expressed the view that the power to condone delay by the Commissioner (Appeals) is for a period of 30 days after the expiry of the limitation period of 60 days, but while further considering the extraordinary cases where gross injustice has been done by the adjudi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

: "12........Thus the total length of delay being very small and with extremely good ground on merit to sustain, we are of the opinion that non interference at this stage would cause gross injustice to the petitioner. Therefore, we need to step in by invoking extraordinary jurisdiction." 16. In the said case, the Division Bench of this Court had relied upon the earlier decision of this Court in the case of D.R. Industries Ltd. (supra). Therefore, as such, there is considerable force in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e would cause to the petitioner." Thereafter, the Court proceeded to exercise the power under Article 226 of the Constitution. 19. In the case of Nelly Garments Pvt.Ltd. vs. Union of India in SCA No.14778/14 decided on 18.12.2014, the entire proceedings before the adjudicating authority had gone ex parte and it was further found at paragraph 6 that - "6....., the High Court is not devoid of its jurisdiction under Article 226 of the Constitution of India in rare exceptional cases to exa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under - (1) The appeal deserves to be preferred within the prescribed time limit as per section 35 of the Act and the delay beyond the period of 30 days cannot be condoned by the appellate authority. Hence, the outer limit of preferring appeal including the period for condonation of delay could be said as 90 days. (2) In exceptional cases, where it is a case of "gross injustice", the aggrieved person can invoke the writ jurisdiction under Article 226 of the Constitution and if the Cou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e caused if no interference is made on the ground of limitation period including outer limit as 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ikh, 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 the ground that limitation period including the outer limit for condonation of delay was over. He further submitted that it has become a regular practice on the part of the assessee to prefer writ petition under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rticle 226 of the Constitution were not exercised on account of the expiry of the period of limitation including for condonation of delay. He therefore submitted that the Larger Bench of this Court may examine the question and may answer in favour of the Revenue. 23. In order to appreciate the contentions raised by the respective sides, it would be appropriate to first consider the scope and ambit of the power under Article 226 of the Constitution. As such, the question is no more res integra wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Apex Court in the case of Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 wherein the question came up for consideration before the Apex Court as to whether the amendment made in the Code of Civil Procedure under section 115 would in any manner affect the jurisdiction under Articles 226 and 227 of the Constitution. The Apex Court in the said decision, after considering various decisions, concluded at para 38 as under: "38. Such like matters frequently arise before the High Courts. We sum .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 â€" by overstepping or crossing the limits of jurisdiction, or (iii) acting in fl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ue 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 capa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stice or where such refusal itself would result in prolonging of the lis. 8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences 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 al .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rdinate 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 cannot be tied down in a str .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge." 2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

onal courts of the country. 25. Once again, in the case of Salem Advocate Bar Association, T.N. vs. Union of India reported at (2005) 6 SCC 344, the question arose before the Apex Court was as to whether amendment made under section 115 of the Code of Civil Procedure would take away the constitutional jurisdiction of the High Court or not. It was held by the Apex Court after considering the earlier decision of the Apex Court in the case of Surya Dev Rai (supra) that curtailment of revisional jur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

has been reiterated. 27. The aforesaid discussion would go to show that no legislation including section 35 of the Act can whittle down or dilute or nullify the power of the constitutional court under Article 226 of the Constitution but the parameter for exercise of the writ of certiorari would be in a case where the Tribunal or the authority has acted without jurisdiction or in excess of jurisdiction or acted in flagrant disregard of the law or the rules of procedure or have acted in violation .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

views are possible. The High Court while exercising the jurisdiction of writ of certiorari may annul or set aside the act or set aside the proceeding, but cannot substitute its own decision in place thereof. The High Court while exercising the power has to apply self restraint. It was well summed up by the Apex Court in the case of Surya Dev Rai (supra) that the power is there but the exercise is discretionary which will be solely governed by the dictate of the judicial conscience, enriched by j .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ve 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. 29. In the decision of the Apex Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported at 2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nsidered 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 da .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Hence, the said decision is of no help to Mr. Parikh for canvassing his contention. 30. In none of the decisions upon which the reliance has been placed by Mr.Parikh, the question was examined as to whether the statutory provision under section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution or not and therefore, we do not find that the said decisions are of any help to Mr.Parikh. At the same time, there is considerable force in the contention of M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version