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2018 (3) TMI 767

R ENTERPRISES V/s. JOINT COMMISSIONER, GUNTUR , [2015 (4) TMI 40 - ANDHRA PRADESH HIGH COURT] require reconsideration? - Held that: - the Constitutional power of judicial review vesting in this Court under Article 226 cannot be whittled down or be made subject to statutory restrictions and parameters prescribed in the context of the remedies provided thereunder. It is only by way of self-imposed restraints that this Court sometimes refuses to exercise its discretionary jurisdiction under Article 226 of the Constitution in a given case. - Ultimately, what would weigh with this Court is whether gross injustice would result from non-consideration of the challenge sought to be laid against the Order-in-Original. It is for the Court to decide, on the facts of each individual case, as to whether it should entertain the writ petition or not and this discretion cannot be shackled at this stage by laying down any straightjacket formula or conditions. - The reference is answered holding that the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES do not constitute good law. A writ petition would lie against an Order-in-Original, against which an appeal was filed .....

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ause was shown. Admittedly, the petitioner company filed appeals impugning the Orders-in-Original dated 21.10.2014 long after the prescribed period. The appeals were filed by it only on 02.02.2016 along with applications to condone the delay. By separate orders dated 31.05.2016, the Commissioner (Appeals) opined that he could not condone the delay beyond the prescribed extended period of thirty days and dismissed the appeals on the ground of limitation. The petitioner company thereupon preferred appeals before the jurisdictional Customs, Excise & Service Tax Appellate Tribunal (hereinafter, the Tribunal). By common order dated 03.01.2017, the Tribunal affirmed the orders of the Commissioner (Appeals) opining that there was no infirmity therein, as per the law laid down by the Supreme Court in SINGH ENTERPRISES V/s. COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR 2008 (221) ELT 163 (SC) = (2008) 3 SCC 70. The petitioner company then filed these writ petitions assailing the Orders-in-Original dated 21.10.2014. While so, in the light of the above referred judgments of a co-ordinate Bench holding to the effect that a writ petition would not lie in these circumstances but taking note of .....

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nting the appeal within the aforestated period of sixty days, allow it to be presented within a further period of thirty days. Presentation of such an appeal beyond the time prescribed in the aforestated provision fell for consideration before the Supreme Court in SINGH ENTERPRISES. In that case, the Commissioner (Appeals), Central Excise and Service-tax, Ranchi, had dismissed the appeal filed beyond the time stipulated in Section 35(1) of the Act of 1944 on the ground of limitation. The said order was challenged by way of a writ petition before the Jharkhand High Court. The High Court held that as the Commissioner had no power of condonation beyond the statutorily prescribed period, no interference was warranted. In appeal, the Supreme Court opined that the Commissioner of Central Excise (Appeals), being a creature of the statute, was vested with jurisdiction to condone the delay beyond the permissible period provided under the statute but the period up to which such condonation could be accepted was also statutorily provided. The Supreme Court pointed out that the proviso to Section 35(1) made the position crystal clear that the appellate authority has no power to allow the appea .....

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inding on the writ Court on the strength of the principle of res judicata. Further, as the fate of the appeals, be it before the appellate authority or the Tribunal, was already sealed owing to the limitation prescribed under Section 35(1) of the Act of 1944, they were, in reality, no longer effective appellate remedies available to the petitioner company. Failure to challenge the said orders would therefore not impact the maintainability of the present writ petitions filed only against the Orders-in-Original. We have dealt with this issue though it does not find mention in the reference order as it was also cited as a ground for dismissal of the writ petitions in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES. As the remedy of appeal to the Commissioner (Appeals) is provided under Section 35(1) of the Act of 1944, invocation of such remedy would invariably be subject to the restrictions prescribed in the statute. However, the fundamental issue is whether, when such an appellate remedy stands foreclosed against an Order-in-Original because the appeal is time-barred in terms of the limitation prescribed in the statute, the said Order-in-Original would also be immune to jud .....

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said Full Bench upon reference of the following questions by a Division Bench of that Court: (i) 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 up to 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (ii) 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 purpose of condoning the delay in filing the appeal? (iii) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? On a comprehensive consideration of all issues, factual and legal, the Full Bench opined that no piece of legislation, including Section 35 of the Act of 1944, could whittle down or dilute or nullify the power of the High Court under Article .....

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by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge. We find ourselves in complete agreement with the views expressed by the Full Bench in the aforestated decision. The ratio laid down in the said decision was followed by the Karnataka High Court in PHOENIX PLASTS CO. V/s. COMMISSIONER OF CENTRAL EXCISE (APPEAL-I), BANGALORE 2016 (344) E.L.T. 148 (Kar.). It is therefore manifest that the power of judicial review vesting in this Court under Article 226 of the Constitution cannot be diluted or shut out by applying statutory prohibitions and restrictions. In consequence, the observations of the Division Bench in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES that no Court of law, including the High Court in exercise of its jurisdiction under Article 226 of the Constitution, can entertain the matter when the statutory appellate remedy under the Act of 1944 is barred by limitation and that the writ Court is debarred from entertaining a challenge to the Order-in-Original which has attained fi .....

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