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TMI Blog2015 (2) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... self contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. Power of judicial review is a rule of discretion than of compulsion. Any attempt to undermine the power of judicial review enshrined under Article 226 of the Constitution would offend the basic structure of the Constitution. High Court, therefore, in an exceptional cases can interfere with the order of the authority provided an extraordinary circumstances warrants it. The judgment rendered in case of Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in this writ petition. the petitioner prayed for setting aside the order of the tribunal with further prayer to condone the delay and transmit the matter to the Appellate Authority for consideration on merit. Section 35 of the Act puts a restriction on the Commissioner (Appeals) to condone the delay beyond certain limits and, therefore, there is no illegality in the order of the Commissioner (Appeals) in rejecting the appeal on such ground. Equally this Court cannot find fault in the order of the tribunal in dismissing the appeal and affirming the order of the Appellate Authority. This Court, therefore, does not find that there is any uniformity and/or illegality in the order of the tribunal in rejecting the appeal because of the restrictions provided under Section 35 of the Act. In view of the ratio laid down in Shyam Sundar Sarma (2004 (11) TMI 523 - SUPREME COURT OF INDIA), the order of the sub-ordinate authority must be the order of the higher authority upon rejection of an application seeking condonation of delay. It is, therefore, the order of the Appellate Authority which is an existence as two orders cannot operate in the field. The Appellate Authority have rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision or the order passed by the Central Excise Officer may appeal to the Commissioner of Central Excise (Appeals) within 60 days from the date of the communication of the said order. The proviso inserted thereto gives discretion to the said appellate authority to condone the delay beyond the normal period of limitation upto further period of 30 days. The maximum period, which could be ascertained from the aforesaid provision, is 90 days from the date of communication of this order. In both the writ-petitions the petitioners filed appeals before the appellate authority beyond 90 days from the date of communication of this order and seeks condonation of delay stating different facts and in those matters, the appellate authority dismissed the appeal having barred by limitation meaning thereby the appeal was not decided on merit. The petitioner of WP 6802 (W) of 2014 approached this Court under Article 226 of the Constitution of India immediately after the dismissal of the appeal by the appellate authority whereas the petitioner of WP 10412 (W) of 2014 exhausted further remedy by preferring an appeal before the Customs Excise Service Tax Appellate Tribunal (CESTAT) who affirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to be exercised in an appropriate case. Let me summarize the propositions of law as laid down in several judgments delivered by different High Court as well as the Supreme Court where an identical point was raised. One of the direct judgment on this point can be conveniently traced from the judgment rendered by the Supreme Court in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) E.L.T. 163 (SC) wherein a writ-petition came to be filed before the High Court against the rejection of an appeal on the ground of limitation. An argument was advanced therein that the High Court in exercise of power conferred under Article 226 of the Constitution can condone the delay even when the Commissioner (Appeals) have no power to condone it beyond the prescribed period. The Supreme Court held that if the limitation is provided in the statute and the power to condone the delay is also vested on the statutory authority though circumscribed by the maximum period, even the High Court should not direct the condonation as it would render the specific provision otiose in these words:- 8. The Commissioner of Central Excise (Appeals) as also the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.C. s case (Supra) was rendered taking note of the peculiar period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs. However, the Gujarat High Court in the case of D.R. Industries Limited Vs. Union of India reported in 2008 (229) E.L.T. 24 (Gujarat) held that the High Court in exercise of the power under Article 226 of the Constitution of India in an extraordinary case may order for condonation of delay beyond the maximum period prescribed under the said Act but not in mechanical or routine manner. What has been held by the Division Bench of Gujarat High Court in the above noted decision that though the adjudicating authority does not enjoin any power to condone the delay beyond 90 days from the date of communication of the order but if any extraordinary circumstances occasioning the delay is proved and gross injustice is shown to have been done, the High Court in an appropriate case can invoke the power under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1963, particularly, Section 5. The right to file an appeal under Section 35G is a statutory right and has to be exercised in the mode, manner and limitation specified in the special statute itself. The language of the provisions seen in conjunction with legislative intent and the objects of expeditious disposal sought to be achieved would exclude the application of Section 5 of the Limitation Act by necessary implication. Once the provisions of Section 5 are not attracted, this court inherently would have no power to condone the delay in filing the present Appeals irrespective of the extent of delay. Thus, we have no hesitation in holding that the Appeals filed under Section 35G of the Central Excise Act, 1944 beyond the prescribed period of limitation in terms of Section 35G(2)(a) would be barred by time and this Court would have no jurisdiction to condone the delay and entertain the appeal filed after the said period of limitation. (Emphasis Supplied) In case of Commissioner of Customs Central Excise Vs. Hongo India Private Limited reported in 2009 (236) E.L.T. 417 (SC), the question for consideration before the Supreme Court was whether the High Court can condone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. It was ultimately held that the Central Excise Act, 1944 is a compete Code in itself and it is a duty of the Court to respect the legislative intent and not to frustrate it. Another Division Bench of the Bombay High Court in case of Raj Chemicals Vs. Union of India reported in 2013 (287) E.L.T. 145 (Bombay) looked the said point from a different angle. The Bench held that once the statute have provided a period of limitation with maximum limit, the High Court should not direct the authority to act de hors the said statute in exercise of power under Article 226 of the Constitution. The relevant excerpts from the above noted judgment is quoted below:- 8. Counsel appearing on behalf of the Petitioner submits that unlike Section 35H which provided an absolute period of limitation of 180 days, Section 35 to which the present petition relates, does provide a power to condone a delay beyond sixty days though up to an extent of thirty days. Hence, it was sought to be urged that there was no absolute bar to take recourse to the provisions of Section 5 of the Limitation Act, 1963. The submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reiteration, we note that we are conscious of the fact that such powers are required to be exercised very sparingly and in event, of extraordinary circumstances in an appropriate case where otherwise we would fail in our duty that such powers are needed to be invoked. We are therefore, of the opinion that order impugned and appellate forums dated 7.1.2011 and 18.1.2009 though not be interfered with and yet the impugned order of order-inoriginal dated 23.2.2009 requires to be quashed and set aside. (Emphasis Supplied) The Karnataka High Court in case of Phoenix Plasts Company Vs. Commissioner of Excise (Appeals), Bangalore-I reported in 2013 (298) E.L.T. 481 (Karnataka) held that the judgment in Texellence (Supra) is not a precedent in view of the judgment rendered by the Supreme Court in case of Singh Enterprises and the Hongo India Private Limited by reiterating the ratio laid down in D.R. Industries Limited and relying thereupon, the Bench of Punjab and Haryana High Court in case of JCB India Limited Vs. Union of India reported in 2014 (301) E.L.T. 209 (P H), upheld the authority and power of High Court under Article 226 of the Constitution of India in condoning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court may invoke the extraordinary jurisdiction in these words: 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement Ltd.) 12. The Constitution Benches of this Court in K.S. Rashid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) 11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. and has been reaffirmed by the Privy Council in Attorney General of Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of Pilot U.J.S. Chopra -v- State of Bombay reported in AIR 1955 SC 633 wherein it is held that the judgment pronounced by the appellate or revisional authority after issuance of the notice and a full hearing in presence of both the parties would replace the judgment of the lower Court. The dismissal of an appeal upon rejecting an application for condonation of delay is not a decision on merit and, therefore, the plea of merger cannot be applied though the resultant effect is the dismissal of an appeal. However, the anomaly whether the rejection of an application for condonation of delay amounts to the disposal or dismissal of the appeal is clarified in three bench decisions of the Supreme Court delivered in case of Shyam Sundar Sarma -v- Pannalal Jaiswal ors; reported in (2005) 1 SCC 436. The sheet anchor of the argument in the said decision was whether the dismissal of an appeal against the ex parte decree for default or dismissal of an application for condonation of delay would amount to a decision in the appeal so as to attract the proviso inserted to Order 9 Rule 13 of the Code putting a fetter in maintaining the application under the said provision. The Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance therewith where the decision of the statutory authority is incomplete defiance of the fundamental principles of judicial procedure or the statutory authority have passed an order in gross violation of principles of natural justice or a fundamental rights guaranteed under the Constitution is infringed by the statutory authority. (ii) The power under Article 226 of the Constitution can be exercised when the statutory remedy is not available because of the interdiction of the limitation prescribed in the statute in an extraordinary circumstances when an extraordinary case is made out. (iii) The doctrine of merger would be attracted in a case when an appeal is dismissed for default or an application for condonation of delay is rejected but not when the appeal is allowed to be withdrawn. On the above legal parameters, let me see whether the relief as claimed in the respective writ petitions can be granted to the petitioners therein. In W.P. 10412 (w) of 2014, the petitioner assailed the order- in-original dated 23.09.2009 before the Commissioner of Central Excise (Appeals), Kolkata beyond ninety days from the date of the receipt of the said order along with an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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