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TMI Blog2023 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... giving any opportunity to the petitioner. 4. Since the facts in both the cases are similar in nature, it would be appropriate to refer to the facts in W.P.No.3905 of 2021 by taking it as a lead petition, which are as under:- (a) The petitioner herein is an assessee on the rolls of the first respondent, doing business in Manganese Ore. The petitioner, is a registered dealer under Andhra Pradesh Value Added Tax Act, 2005 [for short, "APVAT Act"] and Central Sales Tax Act, 1956 [for short "CST Act"]. It is stated that the international exports are exempt under Section 5(1) of CST Act, subject to production of documentary evidence namely Purchase Order of the Foreign Buyer, Proof of export and receipt of consideration in foreign exchange. In respect of inter-state sales against 'C' forms, the turnover is liable to be taxed @ 2%, provided the entire declarations are filed, covering the turnover. In respect of transit sales, they are exempt under Section 6(2) read with Section 3(b) of the CST Act, provided 'E1' forms from the first Inter-State sales and 'C' forms from the buyers are filed. (b) While things stood thus, first respondent passed an adverse order for the year 2012-13 lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his plea. He further submits that the order passed by the primary authority on merits does not get merged with the order passed by the Appellate Authority since the appeal came to be rejected on the ground of delay itself. He further submits that the order passed by the primary authority is also violative of principles of natural justice as the same came to be passed without giving an opportunity of hearing the petitioner. 6. No counter is filed by the respondents in spite of granting time. In fact, learned Government Pleader for Commercial Tax, appearing for the respondents would contend that since the issue involves legal aspects, the same can be decided without a counter as well. Learned Government Pleader would contend that since the orders of the Appellate Authority as well as the APVAT Appellate Tribunal have become final, the question of challenging the order passed by the Assessing Authority, nearly four years after passing of the order, cannot be entertained. According to him, if applications of this nature are entertained, there will not be any end to the litigation. He further submits that in the grounds of appeal filed before the second respondent, the issues r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even, the Appellate Deputy Commissioner in his order categorically states that the appellant was not able to file appeal due to medical reasons, which are mentioned therein, but as the authority has no power to condone the delay, the appeal was rejected. From the two orders referred to above, it is very much clear that the reasons given by the petitioner for not filing the appeal due to medical reasons were accepted but since they are powerless to condone the delay beyond a particular period, appeals came to be rejected. 10. Keeping this factual aspect in the background, we shall now proceed to deal with the issue as to whether a writ petition would lie? 11. It is no doubt true that the Assessment Order, which was passed on 31.03.2017, came to be challenged in the appeal before the second respondent with a delay and before the APVAT Appellate Tribunal. The second respondent as well as the Tribunal rejected the appeals on the ground of delay as stated supra. Thereafter, the present writ petition came to be filed questioning the order passed by the authority, raising grounds which go to the root of the matter. 12. A Full Bench of the Composite High Court for the State of Tel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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 judicial review by this Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution. 13. In our considered opinion, the Constitutional power of judicial review vesting in this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assements for every month came to be filed and also as to the person responsible for passing the order with delay, pleads that it would be just and proper to remand the matter back to the assessing authority to deal with the point raised namely delay in passing the assessment order. 16. Learned Government Pleader for Commercial Tax, appearing for the respondents relied upon a judgment of Hon'ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and Others vs. Glaxo Smith Kline Consumer Health Care Limited [2020 SCC Online SC 440 ] to contend that the Full Bench Judgment of the Combined High Court in ECIL and the Judgment of the Gujarat High Court in Panoli Intermediate were held to be at fault by the Hon'ble Supreme Court and as such, no relief can be claimed basing on the said judgment. 17. In order to appreciate the same, it would be appropriate to refer to the relevant paras of the said judgment, which are as under:- "14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme and intention behind the stated provision otiose. xxxxxxx 18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assesse beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such." 18. From the judgment of the Hon'ble Supreme court referred to above, it very clear that the Full Bench decision of the Composite High Court in ECIL, which has agreed with the view taken by the Full Bench of Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore reported in 2013 (298) ELT 481 (Kar.), was held to have proceeded on a fallaci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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