9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (7) TMI 204 - HC - Central ExciseCondonation of delay of 121 days in filing appeal - time limitation - HELD THAT - The High Court of Telengana and Andhra Pradesh, has in fact, agreed with the Full Bench decision of Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. 2015 (7) TMI 303 - GUJARAT HIGH COURT and observed that 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. I would like to emphasize that the view expressed by the above two full bench decisions of the High Courts holding that writ petition would lie against an order-in-original, even though the appeal was dismissed as time-barred, is not a general rule in all cases and on the other hand, it is a qualified one applicable only under certain circumstances. Petition dismissed as not maintainable.
Issues:
Challenge to Order-in-Original before High Court under Article 226 of the Constitution of India. Analysis: Issue 1: Challenge to Order-in-Original under Article 226 The petitioner filed writ petitions challenging the Order-in-Original passed by the first respondent. The petitioner had previously filed appeals before the appellate authority and Customs, Excise and Service Tax Appellate Tribunal, which were dismissed as time-barred. Subsequent appeals before the Division Bench of the High Court were also dismissed. The petitioner sought to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. The court noted that the appeals were dismissed due to delay and emphasized that the jurisdiction under Article 226 is discretionary. Issue 2: Applicability of Full Bench Decisions The petitioner relied on Full Bench decisions of other High Courts to support the contention that the writ petitions could be entertained despite the dismissals on grounds of delay. The court examined the Full Bench decisions and highlighted that they observed a writ petition could be preferred in specific circumstances, such as lack of jurisdiction, excess of jurisdiction, or violation of principles of natural justice by the adjudicating authority. Issue 3: Discretionary Exercise of Jurisdiction The court emphasized that the exercise of jurisdiction under Article 226 is discretionary and should be guided by judicial conscience and wisdom. It was noted that the length of delay in filing the writ petition is a crucial factor for the court to consider. The court highlighted that the petitioner must demonstrate that the adjudicating authority lacked jurisdiction, acted in excess of jurisdiction, or violated principles of natural justice to warrant the intervention of the High Court. Issue 4: Alternative Remedies The court pointed out that the petitioner had alternative remedies available, such as challenging the Division Bench's order before the apex court. Considering the availability of alternative remedies and the discretionary nature of Article 226 jurisdiction, the court held that the writ petitions could not be entertained as a matter of right. Therefore, all the writ petitions were dismissed as not maintainable, with the option for the petitioner to pursue remedies before the apex court. In conclusion, the High Court dismissed the writ petitions challenging the Order-in-Original, emphasizing the discretionary nature of jurisdiction under Article 226 and the availability of alternative remedies for the petitioner. The court highlighted the need to demonstrate specific circumstances, such as lack of jurisdiction or violation of principles of natural justice, to justify the intervention of the High Court in such cases.
|
