9911796707
TMI Blog2024 (10) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition); iii) issue an appropriate writ, order or direction commanding the respondent for quashing the impugned order dated 28.02.2022 passed in Service Tax Appeal No. 70185 of 2021 passed by respondent no. 2 (Annexure No. 3 to this writ petition); iv) issue an appropriate writ, order or direction commanding the respondent to refund the total deposit amount of Rs. 22,333,836/- and Service Tax along with interest and penalty from financial year 2011-12 and 2014- 15 including the amount recovered under order impugned order dated 31.03.2017 along with interest from the date the amount deposited/recovered from the above said period till the finalization of the case; v) issue an appropriate writ, order or direction commanding the respondent concerned not to take any coercive action against the petitioner firm in pursuance of the impugned orders passed by the respondent nos. 2, 3 & 4." 3. Learned senior counsel for the petitioner submits that the petitioner firm is registered partnership firm, which deals in supply of manpower for maintenance work, attend complaints and line break downs, etc. of 11 KV feeder fed from 33/11 KV under various tenders from financial year 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use to condone the same. 8. Rebutting the said submissions, Shri Gaurav Mahajan, learned counsel for respondent no. 2 submits that the impugned orders have rightly been passed as the appeal was preferred beyond the period of limitation, which could not be condoned beyond the prescribed period. 9. He further submits that against the impugned order, the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-J Central Excise Act before the Division Bench of this Court. The writ petition is liable to be dismissed on the ground of alternative remedy. In support of his submissions, he has relied upon the following judgements of the Apex Court as well as this Court:- (1) United Bank of India Vs. Satyawati Tondon & Others [(2010) 8 SCC 110] (paragraph no. 43), (2) Radha Krishan Industries Vs. State of Himachal Pradesh & Others [(2021) 6 SCC 771] (paragraph nos. 27.3 and 27.5), (3) Varimadugu Obi Reddy Vs. B. Sreenivasulu & Others [(2023) 2 SCC 168] (paragraph no. 36), and (4) Assistant Commissioner (CT) LTU, Kakinada Vs. Glaxo Smith Kline Consumer Health Care Limited [2020 (36) GSTL 305 (SC)]. 10. He further submits that since the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." 15. Further, the Supreme Court in Glaxo Smith Kline Consumer Health Care Limited (supra) has held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (emphasis supplied) We may usefully refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." (emphasis supplied) In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors.12, this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India & Ors.19 and also of the K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such." 16. Further, the Supreme Court in Hindustan Machine Tools Limited (supra) has held as under:- "19. The power conferred under Articles 226/227 is designated to effectuate the law, to ensure that rule of law is enforced and the statutory authorities and other organs of the State act in accordance with law. It is not to be invoked whereby authorities are directed to act contrary to law. Wherever, the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It is for the legislature to prescribe the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative intent. In the context of limitation under special statutes, this principle assumes paramount importance, guiding courts in their adjudicative function. While the court retains discretionary authority in certain matters, the primacy accorded to limitation under special statutes operates as a circumscribing principle delineating the boundaries within which judicial discretion may be exercised. 11. The jurisprudential foundation supporting the primacy of limitation under special statutes over general statutes is multifaceted. Firstly, it recognizes the legislature's intent to create a cohesive and self-sufficient legal framework tailored to the specific nuances of the relevant legal domain. By providing detailed provisions governing limitation period, the legislature ensures certainty and predictability in legal proceedings, thereby promoting efficiency and expeditious resolution of disputes. Moreover, the exclusion of general statutes like the Limitation Act from the purview of special statutes serves to maintain the integrity and coherence of the legislative scheme, preventing potential conflicts and inconsistencies in statutory interpretation. " 19. That in the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
