TaxTMI 
TaxTMI 
2010 (1) TMI 1146
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....een the parties. Exhibit P1 produced for identification. Exhibit P2 is another agreement. According to the petitioner, service tax is not payable on the reimbursed amount and the service tax on the entire commission was paid by the petitioner. The authorities did not accept this contention and exhibit P3 show-cause notice was issued as to why the alleged difference in service tax should not be demanded from him. The petitioner submitted exhibit P4 reply. The adjudicating authority rejected the contention in exhibit P4 and confirmed the demand. The petitioner was also imposed a penalty under section 78 of the Finance Act, 1994. Separate penalty under section 76 of the Finance Act was also imposed. A copy of the order is produced as exhibit P5. The order was received at the office of the petitioner on April 24, 2008. Though the petitioner is entitled to prefer a statutory appeal against the said order before the third respondent within three months, as prescribed under section 85 of the Finance Act, he did not invoke the appellate remedy within time. Obviously, for the reason that power to condone the delay by the appellate authority is limited for a period of three months which also....
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....SC). Per contra, learned senior standing counsel Sri John Varghese would contend that it is now well-settled that though the alternate remedy by itself may not be a bar for invoking the power under article 226 of the Constitution of India it has been held by catena of decisions that by way of self-imposed restriction, this court will not entertain any writ petition when such effective appellate remedy is available to the aggrieved party. He placed reliance on a decision of the apex court in Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC 675. He also contended that when the statutory remedy available to the petitioner under law is barred by law of limitation, his remedy has come to an end just like in the case of a time-barred suit and he cannot resurrect his unenforceable cause of action. Reliance is also placed on two decisions of this court in Kerala Motor Transport W.W.F. Board v. Government of Kerala [2001] 1 KLT 608 and T. Krishnan v. State of Kerala [2007] 1 ILR 233 (Ker). Heard both sides. In Rayalseema Constructions case [1959] 10 STC 345 (Mad) the Madras High Court held that the finality of an assessment under the terms of a statute is not always or necessarily conclusive....
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....annot be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under article 226 when he had adequate remedy open to him by way of an appeal to the Tribunal. The apex court in Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC 675, after scanning various decisions rendered by the apex court, summed up the principles as to when and at what circumstances the constitutional remedy under articles 226 and 227 of the Constitution of India could be invoked by a party. In paragraph 38 the apex court held that: "38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: (1) Amendment by Act 46 of 1999 with effect from July 1, 2002 in section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, nd continue to be subject to, certiorar....
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....rection is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. ....
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....y to the Government within 60 days from the date of receipt of the order. The appeal was preferred after a long delay. The said appeal was rejected by the Government, which was challenged before this court. It was held that when the special statute does not contain a provision making the provisions of section 5 of the Limitation Act applicable, the question of condonation of delay invoking that provision does not arise. The period prescribed under the statute has already expired. In the circumstances, when there was no power to condone the delay to entertain an appeal filed beyond the time prescribed under the Act, the delay cannot be condoned by invoking the provisions of the Limitation Act. The writ petition in such circumstances though the appellate remedy was barred and rejected without being entertained, was not entertained by this court under article 226 of the Constitution of India. The Division Bench confirmed the decision of the learned single Judge and dismissed the appeal. In T. Krishnan v. State of Kerala [2007] 1 ILR 233 (Ker), the same issue, arising under the Motor Transport Workers Welfare Fund Act, was considered by this court. There also the power of the appellat....
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....bed under the Act and that appeal was preferred beyond the maximum period within which it should condone the delay. Consequently, the appeal was rejected by the appellate authority without the same being entertained. Thus, the matter could not be considered on merits. Challenging the order the writ petitions were preferred before this court. In paragraph 7 of the judgment it was held as follows (page 24 in 3 VST): ". . . in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under section 85(3) of the Finance Act, 1994 they cannot get the appeals revived and heard on the merits by resorting to the discretionary remedy before this court under article 226 of the Constitution of India. Once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time-barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court u....
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....ade applicable to the High Court while exercising jurisdiction under article 226 of the Constitution was not acceptable as it did not contain any reason. This court also held that all the remedies of the respondents have come to an end when their appeals were dismissed by the Commissioner of Central Excise (Appeals) on the ground of limitation. Even the further appellate authority or this court does not have the jurisdiction to entertain the claim on merits disregarding the limitation or condoning the delay. In Maheswari Fireworks Industries case [2001] 121 STC 272 (Mad), it was stated that the period prescribed under the statute and the limitation prescribed cannot be made applicable to the High Court under article 226 of the Constitution. True that there is no limitation prescribed for invoking the remedy under article 226 of the Constitution. So, however, if the writ petition is filed with undue delay, the High Court would not be inclined to exercise jurisdiction for that reason alone. It cannot be said that when the statutory remedy available under law is barred by the Law of Limitation prescribed under the statute, it is then open to the party to seek extraordinary remedy und....