TMI Blog2023 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 (5) TMI 149 - SUPREME COURT ], it is very clear that the request of the Petitioner therein came to be rejected mainly on the ground of inability to file an appeal within the prescribed time was not properly substantiated or explained. Further, the Court also observed that the Order of the High Court does not indicate violation of principles of natural justice or non-compliance of statutory requirements in any manner. The Court also held that the Order of assessment does not get merged with the order rejecting the request to condone the delay. In the instant case, the Appellate Authority as well as VAT Tribunal, categorically held that there was sufficient cause for preferring the appeal with delay, but, as they have no power to extend the period of limitation, rejected the appeals. Apart from that, it is also urged that, the assessment order came to be passed without giving an opportunity of hearing and there is no material to show that the show-cause notice was served on the Petitioner. Since, the delay in filing the appeals was explained and the reason given by the Petitioner was accepted, but the delay was not condoned due to limitation prescribed under the Act and as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 levying tax @ 14.5% on the entire turnover, on the ground that the petitioner has failed to produce the documentary evidence in support of his claim for exemption towards exports and transit sales and C forms for concessional rate of tax. The said order which was passed on 31.03.2017 was served on to the petitioner on 05.05.2017. Because of ill-health and hospitalization, the petitioner could not take any steps to challenge the same within the time prescribed under Section 31 of the APVAT Act. However, on 04.12.2018, the petitioner preferred an appeal before the second respondent, wherein, he claimed that the exports turnover do not relate to the sales of the foreign country but sales to SEZ Units within India, which are also not liable to tax, provided Form-I declarations are given by SEZ Units, for the transit sales as well. The said appeal was filed with a delay of 540 days. Though, reasons given for filing the appeal with a delay, were accepted, the Appellate Authority rejected the appeal on the ground that he has no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lications 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 relating to limitation was also raised, but, having regard to the order passed by the Appellate Authority, rejecting the appeal itself, though not on merits, but on the ground of delay, the findings of the assessing authority get merged with the order of the Appellate Authority which was confirmed by the Tribunal. 7. Insofar as the violation of principles of natural justice is concerned, learned Government Pleader would contend that a perusal of the Assessment Order, would show that though the petitioner has received a show cause notice, he did not file any objections and did not contest the matter and hence he cannot now turn around and say that no opportunity of personal hearing was given before passing the Assessment Order. 8. Before proceeding further, it is to be noticed that the second respondent as well as the APVAT Appellate Tribunal while rejecting the appeal, filed by the petitioner, on the ground of delay categorically held that though the appellant/writ petitioner has got genuine reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Telangana and the State of Andhra Pradesh in ECIL, after referring to the judgments of (i) The Kerala Education Bill, 1957 reported in AIR 1958 SC 956; (ii) Minerva Mills vs. Union of India reported in AIR 1980 SC 1789; and (iii) L. Chandra Kumar vs. Union of India reported in (1997) 3 SCC 261, held that writ jurisdiction conferred upon the High Court under Article 226 of the Constitution of India is part of the inviolable basic structure of the Constitution and any law which seeks to take away or restrict the jurisdiction of the High Court under Article 226 of the Constitution of India must be held to be void . 13. In ECIL vs. Union of India [cited 2 supra ], the Full Bench dealt with a similar situation, where the Orders-in-Original dated 21.10.2014 which was appealable under Section 35 of the Act of 1944, had to be filed within sixty days ordinarily and the Appellate Authority was empowered to condone delay only for thirty days thereafter, provided sufficient cause was shown. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 14. The Full Bench also referred to the Full Bench judgment of Gujarat High Court in Panoli Intermediate (India) Pvt. Limited vs. Union of India reported in 2015 (326) ELT 532 (Guj.) where identical issue came up for consideration. In para 25, the Court held as under:- 25. In the result, the reference is answered holding that the decisions in M/s.Resolute Electronics Pvt. Ltd. s case (supra) and Star Enterprise s case (supra), do not constitute good law. A writ petition would lie against an Order-in-Original, against which an appeal was filed and dismissed as time-barred or no appeal had been preferred as it would have been time-barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore. The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. 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 fallacious premise, with regard to its jurisdiction under Article 226 and 227 of the Constitution of India. The Court held that it is not a matter of taking away the jurisdiction of High Court. 19. At this stage, it would be appropriate to refer to paragraph No.19 of the judgment in Glaxo Smith Kline Consumer Health Care Limited (cited 3 supra ). After referring to the facts of the said case and the findings given by the High Court, the Hon ble Supreme Court in last four lines of the said paragraph held as under: Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. In paragraph No. 20 of the said Judgment, the Court while dealing with the argument of the Respondent namely, having failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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