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TMI Blog2024 (10) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, the petitioners have preferred an appeal, which has been dismissed as time barred vide order dated 25.6.2024. 4. Per contra, learned Standing Counsel has supported the impugned order and submits that the impugned orders have rightly been passed as the appeal was preferred beyond the period of limitation, which could not be condoned without there being any proper explanation. He further submits that order dated 19.1.2023 was served upon the petitioner but the petitioner has filed the appeal on 28.5.2023. He submits that since the delay in filing the appeal is beyond the period prescribed under Section 107 of the Act hence the same was dismissed as time barred as no proper explanation has been given for condonation of delay. 5. After hearing the learned counsel for the parties, the Court has perused the record. 6. It is not in dispute that after service of the impugned order dated 19.1.2023, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the limitation. Admittedly, the impugned order dated 19.1.2023 was received by the petitioner. 7. Further, before this Court also, petitioners have failed to give any good ground for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when theaggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.9). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors.10, the Constitution Bench of this Court made it amply clear that although the power of the High Court underArticle 226 of the Constitution is very wide, the Court must exercise selfimposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by that statute must only be availed of. In paragraph 11, the Court observed thus: "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under subsection (1) ofSection 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. 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. Hawkesfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court underArticles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition 19 AIR 2015 Guj 97 20 2013 (298) ELT 481 (Kar.) on the ground that the same is without jurisdiction or passed in excess of jurisdiction by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also nonsuit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rb of exercise of its jurisdiction under Articles 226/227 of the Constitution. The view which has been expressed by us herein above, is supported by various judicial precedents." 11. This Court in the case of M/s Abhishek Trading Corporation Vs. Commissioner (Appeals) & Another [Writ Tax No. 1394 of 2023, decided on 19.01.2024], has held as under:- "7. The Central Goods and Services Act is a special statute and a self-contained code by itself. Section 107 of the Act has an inbuilt mechanism and has impliedly excluded the application of the Limitation Act. It is trite law that Section 5 of the Limitation Act, 1963 will apply only if it is extended to the special statute. Section 107 of the Act specifically provides for the limitation and in the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Accordingly, one cannot apply Section 5 of the Limitation Act, 1963 to the aforesaid provision." 12. Further, in M/s Kumar Construction Vs. Commissioner of Central Excise (Appeals) & Another [Writ Tax No. 1368 of 2023, decided on 14.05.2024]), this Court Court has held as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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