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TMI Blog2024 (10) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... lay after the expiry of 30 days' period.' Thus, it has been held that the delay cannot be condoned beyond the period what is prescribed under the respective Act as the language of the section specifically provides for condonation of delay of additional period mentioned therein only. Further, since the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-G of the Central Excise Act before the Division Bench of this Court, writ petition before the Single Judge is not maintainable. Petition dismissed. - HON'BLE PIYUSH AGRAWAL, J. For the Petitioner :- Alok Kumar, Shachi Singh, Vikrant Rana For the Respondent :- A.S.G.I., Gaurav Mahajan, Gopal Verma ORDER 1. Heard Shri R.R. Agrawal, learned Senior Advocate, assisted by Shri Vikrant Rana, learned counsel for the petitioner, Shri Gaurav Mahajan, learned counsel for respondent no. 2 and Shri Gopal Verma, learned counsel for the Union of India. 2. The instant writ petition has been filed for the following reliefs:- i) issue an appropriate writ, order or direction commanding the respondent for quashing the impugned order dated 31.03.2017 passed in order in Original No. 90/AC/DMRT/2016-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order dated 31.03.2017 was passed confirming the demand, against which an appeal was preferred, which was also dismissed as barred by time vide order dated 28.02.2022. 6. In support of his contention, he has relied upon the judgement of the Supreme Court in ITC Limited Another Vs. Union of India Others [(1998) 8 SCC 610] and submits that the authority below is competent to extend the period of limitation. 7. He further submits that there were two partners in the petitioner firm, namely, Shri Arun Kumar Sharma and Shri Gajendra Kashmira having 50% share each, but the other partner, Shri Gajendra Kashmira, resigned from the partnership firm. Therefore, the only surviving partner was Shri Arun Kumar Sharma, who has filed the instant writ petition. He further submits that the partner of the petitioner Firm, namely, Arun Kumar Sharma, was languishing in jail from 30.05.2017 to 02.08.2017. Vide order dated 15.07.2019, he was released on bail and came out from the jail only on 02.08.2019. Due to the said fact, the petitioner could not submit or file any appeal against tax liability. He further submits that since the petitioner firm consists of two partners, in which one partner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (328) ELT 27 (P H)]. 11. After hearing the learned counsel for the parties, the Court has perused the record. 12. It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days. 13. This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excise Act. 14. The Apex Court, after considering the judgement of ITC Limited (supra), in the case of Singh Enterprises (supra) has specifically held as under:- 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short ?the Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower 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 arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders 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. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon 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 Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. 18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apply Section 5 of the Limitation Act, 1963 to the aforesaid provision. 18. Further, in M/s Kumar Construction (supra), this Court Court has held as under:- 8. It is a trite law that the power of Section 5 of the Limitation Act will be available only if it is extended to a special statute. The adjudication of matters involving statutory timelines often raises questions regarding the interplay between general statutes such as the Limitation Act and special statutes with their own prescribed limitations. 9. Special statutes such as the Finance Act, 1994, or the Central Excise Act are enacted to address specific areas of law comprehensively. These statutes often contain detailed provisions governing procedural aspects, including timelines for initiating legal proceedings, such as appeals. Courts have consistently held that when a special statute contains provisions governing limitation periods, it impliedly excludes the application of general statutes such as the Limitation Act. The rationale underlying this principle is rooted in the notion that the legislature, in enacting a special statute, intends to provide a comprehensive and exhaustive regime governing all aspects of the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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