2018 (3) TMI 767 - HC - Central Excise

Maintainability of petition - alternative remedy - power of review - Whether the decisions of this Court in M/s. RESOLUTE ELECTRONICS PVT. LTD. V/s. UNION OF INDIA 2015 (319) ELT 51 (AP) and STAR 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 and dismissed as time-barred or no appeal had been preferred as it would have been time-barred, provided sufficient grounds are made out warranting exercise of the power of judicial review under Article 226 of the Constitution. Petitions shall be placed before the appropriate Court for further consideration on merits - reference disposed off.

Issues Involved:
1. Whether the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD. v. Union of India and STAR ENTERPRISES v. Joint Commissioner require reconsideration.
2. Maintainability of writ petitions under Article 226 of the Constitution against Orders-in-Original passed under the Central Excise Act, 1944, when the statutory remedy of appeal is barred by limitation.
3. The impact of non-challenge to the orders of the appellate authority and the Tribunal on the maintainability of writ petitions.
4. The extent of judicial review under Article 226 of the Constitution.

Issue-wise Detailed Analysis:

1. Reconsideration of Previous Decisions:
The Full Bench was constituted to address whether the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES require reconsideration. These decisions held that a writ petition under Article 226 would not lie against an Order-in-Original once the statutory remedy of appeal is barred by limitation.

2. Maintainability of Writ Petitions:
The petitioner, Electronics Corporation of India Limited, challenged Orders-in-Original dated 21.10.2014, which imposed interest liabilities under Section 11AA of the Central Excise Act, 1944. The petitioner filed appeals against these orders after the prescribed period, which were dismissed as time-barred by the Commissioner (Appeals) and affirmed by the Tribunal. The Division Bench referred the question of maintainability of such writ petitions to the Full Bench, considering a contrary judgment by the Gujarat High Court in PANOLI INTERMEDIATE (INDIA) PVT. LTD. v. Union of India.

3. Impact of Non-Challenge to Appellate Orders:
The Full Bench noted that the dismissal of appeals by the appellate authority and the Tribunal was based on limitation grounds and not on the merits. Therefore, the absence of challenge to these orders should not preclude the petitioner from filing writ petitions against the Orders-in-Original. The Full Bench emphasized that a decision based purely on technicalities is not binding on the writ Court under the principle of res judicata.

4. Extent of Judicial Review:
The Full Bench affirmed that the power of judicial review under Article 226 cannot be curtailed by statutory limitations. This power is part of the basic structure of the Constitution and cannot be abrogated. The Court cited several Supreme Court judgments, including IN RE THE KERALA EDUCATION BILL, MINERVA MILLS v. Union of India, and L.CHANDRA KUMAR v. Union of India, to support this view.

The Full Bench agreed with the Gujarat High Court's Full Bench in PANOLI INTERMEDIATE (INDIA) PVT. LTD., which held that the High Court's power under Article 226 could not be diluted by statutory provisions. However, the exercise of this power should be limited to cases where the authority acted without jurisdiction, in excess of jurisdiction, or in violation of natural justice principles.

Conclusion:
The Full Bench concluded that the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES do not constitute good law. A writ petition can be maintained against an Order-in-Original even if an appeal is time-barred or no appeal is preferred, provided sufficient grounds are made out for judicial review under Article 226. The writ petitions should be considered on their merits, and it is not necessary to challenge the orders dismissing the appeals as time-barred. The reference was answered accordingly, and the writ petitions were to be placed before the appropriate Court for further consideration on merits.

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