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TMI Blog2018 (3) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. - Writ Petition Nos. 9482 & 9485 of 2017 - - - Dated:- 13-3-2018 - THE HONBLE THE ACTING CHIEF JUSTICE SRI RAMESH RANGANATHAN,THE HONBLE SRI JUSTICE V.RAMASUBRAMANIAN,AND THE HONBLE SRI JUSTICE SANJAY KUMAR For the Petitioner : Sri C.V.Narasimha For the Respondents : Sri B.Narasimha Sarma, Sri M.V.J.K.Kumar and Sri Vinod Kumar Tadakamalla ORDER ( Per Sri Justice Sanjay Kumar ) The reference made by a Division Bench comprising one of us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Supreme Court in SINGH ENTERPRISES V/s. COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR 2008 (221) ELT 163 (SC) = (2008) 3 SCC 70. The petitioner company then filed these writ petitions assailing the Orders-in-Original dated 21.10.2014. While so, in the light of the above referred judgments of a co-ordinate Bench holding to the effect that a writ petition would not lie in these circumstances but taking note of a contrary judgment of a Full Bench of the Gujarat High Court in PANOLI INTERMEDIATE (INDIA) PVT. LTD. V/s. UNION OF INDIA , 2015 (326) ELT 532 (Gujarat.) the aforestated Division Bench made the reference on the question of maintainability of these writ petitions. Be it noted that the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD. , and STAR ENTERPRISES were rendered by a Division Bench comprising the then Honble The Chief Justice and one of us, SK,J. In both those cases, the writ petitioners had unsuccessfully availed the appellate remedy but were turned down on the ground that their appeals were time-barred. They thereupon challenged the original orders directly before this Court. However, Sri C.V.Narasimham, learned counsel for the petitioner company, would co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise (Appeals), being a creature of the statute, was vested with jurisdiction to condone the delay beyond the permissible period provided under the statute but the period up to which such condonation could be accepted was also statutorily provided. The Supreme Court pointed out that the proviso to Section 35(1) made the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the further period of thirty days. The Supreme Court accordingly upheld the decision of the High Court. In M/s. RESOLUTE ELECTRONICS PVT. LTD. , the Division Bench took note of the fact that the orders of the appellate authority and the Tribunal were not challenged before it and observed that the petitioner, after exhausting all the remedies, had filed the writ petition. The Division Bench opined that the petitioner, with its eyes open, allowed the period for preferring the appeal as well as for condonation of the delay to expire, thereby frittering away its own remedy, and was therefore responsible for creation of the situation of being remediless. The Division Bench further held that the provisions of Section 35(1) of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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. As long back as in the year 1958, in IN RE THE KERALA EDUCATION BILL, 1957 (SPECIAL REFERENCE NO.1 OF 1958) AIR 1958 SC 956, the Supreme Court observed that any law which seeks to take away or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? On a comprehensive consideration of all issues, factual and legal, the Full Bench opined that no piece of legislation, including Section 35 of the Act of 1944, could whittle down or dilute or nullify the power of the High Court under Article 226 of the Constitution but added the rider that exercise of extraordinary jurisdiction thereunder should be in cases where the Tribunal or the authority acted without jurisdiction or in excess of jurisdiction or in flagrant disregard of the law or the rules of procedure or in violation of the principles of natural justice, thereby resulting in failure of justice. The Full Bench cautioned that writ jurisdiction should not be converted into appellate jurisdiction resulting in re-appreciation of evidence or correction of errors, where two views are possible. Referring to SINGH ENTERPRISES, the Full Bench observed that the issue as to whether Section 35 of the Act of 1944 affects the jurisdiction of the High Court unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shut out by applying statutory prohibitions and restrictions. In consequence, the observations of the Division Bench in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES that no Court of law, including the High Court in exercise of its jurisdiction under Article 226 of the Constitution, can entertain the matter when the statutory appellate remedy under the Act of 1944 is barred by limitation and that the writ Court is debarred from entertaining a challenge to the Order-in-Original which has attained finality, by applying the principle of res judicata, do not constitute good law. That being said, as rightly pointed out by Sri B.Narasimha Sarma, Sri M.V.J.K.Kumar and Sri Vinod Kumar Tadakamalla, learned counsel for the Revenue, entertainment of a writ petition against an Order-in-Original in circumstances such as are obtaining presently cannot be for the mere asking. The High Court would necessarily take note of the fact that the writ petitioner who seeks to assail the validity of such an Order-in-Original lost out on invocation of appellate remedies due to delay, intentionally or otherwise, and exercise its discretion judiciously on the facts of that individual case to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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