9911796707
TMI Blog2019 (5) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... or not is the question mooted for consideration in these appeals. 2. The thrust of the argument is that the power of this Court under Article 226 of the Constitution is quite wider enough to extend the relief with regard to the merit involved and that the technical ground of delay cannot be a bar in this regard. 3. Four different appeals arise from four different proceedings, all of which were dealt together by the learned Single Judge by passing a common judgment dismissing the writ petitions. Writ Appeal No. 265 of 2019 is treated as the lead case, as suggested by the learned Senior Counsel for the Appellants. 4. We have heard Shri Chetan Sharma, the learned Senior Counsel appearing for the Appellants and Shri Maneesh Sharma, learned Standing Counsel for the Respondents/Department/Revenue. 5. The crux of the factual matrix reveals that the Appellants are supplying bed-rolls and newspapers as required by the award of the contract by M/s. Indian Railways and IRCTC subject to the terms and conditions as agreed upon. The duty cast upon the Appellants based on the contracts was being discharged accordingly and while so, they were served with a show cause notice proposing to tax t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the inordinate delay beyond the extent as specified in the statute, thus, without entertaining the merits. This made the Appellants to approach this Court by filing writ petitions referring to the sequence of events and trying to explain the delay, particularly in connection with the demise of the mother of the authorised signatory and also with reference to the unforeseen situations resulted in connection with the marriage of the daughter of the deponent and also the registration of a crime in connection with the affairs. 8. The learned Single Judge considered all the connected matters together and as per the common judgment dated 20.03.2019 held that the issue involved was no longer res integra as concluded/declared by the Apex Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur {(2008) (221) ELT 163 (SC) : (2008) 3 SCC 70}. Reference was also made to the decision sought to be cited by the Appellants in M/s. Shri Sai Rolling Mill v. The Commissioner, Customs, Central Excise & Service Tax & Others; WA No. 322 of 2017 decided on 15.11.2018 whereby the appeal against dismissal of the writ petition was disposed off remitting the matter back to the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kasturi & Sons; (1999) 3 SCC 346; Uma Textiles Processors v. Union of India; (2013) 290 ELT 214; The Food Inspector, Cannanore Municipality, Cannanore v. M. Gopalan; (1991) AIR (Kerala) 240; M.P. Steel Corporation v. Commissioner of Central Excise; {(2015) 319 ELT 373 : (2015) 7 SCC 58}; Central Industrial Security Force v. Commissioner of CGST & C. Ex.; (2018) 14 GSTL 198; Sai Rolling Mill, A partnership firm registered v. Commissioner, Custom, Central Excise & Service Tax; Writ Appeal No. 322 of 2017, decided on 15.11.2018; ITC Ltd. & Another v. Union of India (UOI) & Others; SLP(C) No 11508 of 1998, decided on 22.08.1990 and Star Battery Ltd. v. Assistant Commissioner, C. Ex; (2011) 264 ELT 363. * During the course of submission, learned Senior Counsel submits with specific reference to Uma Textiles (supra), MP Steel Corporation (supra) and a Division Bench judgment of this Court in Sai Rolling Mill (supra), besides making reference to a Division Bench verdict passed by the Allahabad High Court in Central Industrial Security Force (supra) and that of a Single Bench of the Calcutta High Court in Star Battery Ltd. (supra) that the orders/verdict under challenge have caused misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of India. For convenience of reference, Section 85(3A) of the Act, 1994 is extracted below: "85. (3A). An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. " 12. There is no dispute to the fact that the appeal came to be filed before the appellate authority only after 253 days beyond the stipulated period of 'two months' and hence, it was sought to be condoned by filing an application. The maximum condonable limit as per the statute is only 'one month', after the prescribed period of two months. This being the position, whether it could have been condoned by the statutory authority and if not possible, could it have been dealt with granting relief by this Court in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause found in the various statutes and thereby to consider to give the effect of statutory provision made for limitation. In the said case, the question as to whether the provisions of Section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution for exercise of the constitutional power or not was not considered by the Apex Court. Therefore, the contention of the learned counsel Mr. Parikh that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction under Article 226 in a case where the period of 30 days is over cannot be countenanced for the simple reason that whether the High Court should exercise the power to condone the delay after expiry of the period of 30 days while exercising the power under Article 226 of the Constitution is one thing, but whether the jurisdiction of the High Court under Article 226 of the Constitution is affected by the statutory provision of section 35 of the Act is another thing. It cannot be disputed if the High Court declines to exercise the power after the expiry of the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel fairly submitted that he was not aware, as a different counsel was dealing with the situation at that point of time. Be that as it may, the learned Senior Counsel submits that the Appellant/Petitioner was only discharging his duty as a dutiful son honouring the values of motherhood, following the doctrine "matru devo bhava". This Court is aware of the unparalleled status of a mother in the society and the vacuum resulted in the lives of her children. This Court is also aware of the teachings in the Upanishads, particularly the Taittiriya Upanishad, which says: "maatru devo bhava, pitru devo bhava, aachaarya devo bhava; atithi devo bhava", (be a man to whom mother is god, be a man to whom father is god, be a man to whom teacher is god, and be a man to whom guest is a god). When the Appellant contends that he was otherwise engaged in connection with the demise of his mother, even if it is acceptable, it cannot cover the inordinate delay of 253 days during which period, the Appellant did not find it necessary to compromise with the business activities and other commercial transactions. It has to be reasonably presumed that this plea under this head was never argued before the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants and also by the Respondent (extracted and relied on by the learned Single Judge as well), Suryachakra Power Corporation v. Electricity Department; (2016) 16 SCC 152; M.P. Steel Corporation (supra) and such other verdicts. 20. After a threadbare analysis of the provisions of law and the precedents, it was declared in categorical terms by the 'three member Bench' that, once the period of limitation is specifically prescribed in a statute and stipulates the maximum period/extent of delay which can be condoned, it cannot be condoned by the Apex Court even in exercise of the power under Article 142 of the Constitution of India. Having said so, the Appellants cannot be heard to say that the High Court is still having power to condone the delay beyond the prescribed extent under the statute, by invoking the power under Article 226 of the Constitution, which in fact will be amounting to re-writing the law and contrary to the verdict passed by the Apex Court, which is having a binding effect all over India in view of Article 141 of the Constitution of India. There is no answer from the part of the Appellants to the law declared by the 'three member Bench' of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
