TaxTMI 
TaxTMI 
2015 (2) TMI 138
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.... is maintainable challenging an order-in-original which merged with the order of appellate authority upon rejection of application for condonation of delay. Before proceeding to deal with the aforesaid point, it would be apposite to quote Section 35 of the Central Excise Act, 1944 which runs as follows:- "SECTION 35. Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise , may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order" provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." Subsection (1) thereof clearly provides that any person aggrieved by the decision or the order passed by the Central Excise Officer may appeal to the Commissioner of Central Excise (Appeals) within 60 days from....
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.... of an appeal and the appeal having been filed beyond the prescribed period and the authority is denuded of power to condone the delay beyond the maximum period provided therein, have been dismissed. Several decisions of different High Courts are cited in support of the aforesaid contentions upholding the sovereignty of the power of the judicial review conferred by the Constitution upon the High Court with the rider that it should be so exercised in exceptional cases. This Court feels that the judgment cited at the Bar should be looked into and the ratio could be beneficially applied in favour of the petitioners. The respondents have refuted the aforesaid contentions of the petitioners by saying that once the statute provides the maximum limit to exercise discretion by the statutory authority, the statutory authority does not retain power to condone the delay beyond the maximum period. It is strongly submitted that the Act provides a further appeal before the High Court who is essentially a Court of Appeal and further enjoins the constitutional power to be exercised in an appropriate case. Let me summarize the propositions of law as laid down in several judgments delivered....
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....e 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. (10) Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt or order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (Supra) was rendered taking note of the peculiar period of limitation, this Court can direct condonation. That would rend....
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....171 (Bombay) took a dissenting view in observing that the Limitation Act is not a substantive law but an piece of adjective or procedural law and applied to a matter which the legislature expressly or by way of necessary implication made it applicable, taking aid of the judgment of the Supreme Court rendered in case of Nasiruddin Vs. Sitaram Agarwal reported in AIR 2003 SC 1543 wherein it is held that in absence of statutory provision the Court cannot usurp the inherent power to condone the delay. It would be relevant to quote paragraph 34 which runes thus:- "34. In the case of Nasiruddin & Others (Supra), the Supreme Court had also ambiguously stated the principle that in absence of statutory provision, no inherent powers of the court exist to condone the delay. The unambiguous language of Section 35G fixes the period of limitation within a self-contained Code and does not provide for condonation of delay by the High Court. The scheme of the provision is such that it would be difficult to import or read into it the provisions of the Limitation Act, 1963, particularly, Section 5. The right to file an appeal under Section 35G is a statutory right and has to be exercised in the mo....
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....en the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H (1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act." It was ultimately held that the Centra....
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....in Singh Enterprises, accepted and adopted the view rendered in case of D.R. Industries (supra) and upheld the power of the High Court under Article 226 of the Constitution in condoning the delay beyond the maximum period prescribed under the Act in an extraordinary cases in following words:- "11. In the instant case, as the petitioner has approached this Court urging to invoke extraordinary jurisdiction relying on the decision of D. R. Industries Ltd -Vs- Union of India (supra), recognizing that this Court has extraordinary powers in appropriate case to interfere even while upholding the contention that there is statutory limitation to which delay can be condoned by the authorities. We ourselves have earlier in case of Senior Superintendent of Post Office - V- Union of India (supra) recognized that if an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation. 13. At the cost of reiteration, we note that we are conscious of the fact that such powers are required to be exercised very sparingly and in event, ....
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.... power not only can be exercised for issuance of the prerogative writs but also an order or direction to enforce any fundamental rights and for any other purpose. The power of the High Court under Article 226 of the Constitution is wider in scope and is long enough to reach injustice wherever it is found. The Court as a senitial on the qui vive is to mete out injustice in the given facts. The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed restrictions. In a recent judgment rendered by the Supreme Court in case of Commissioner of Income Tax -v- Chhabil Dass Agarwal reported in (2014) 1 SCC 603, it is held that power under Article 226 is not an absolute bar when an efficacious alternative remedy is available. The High Court in an appropriate case have imposed self-restrictions in not exercising the discretionary power when an efficacious alternative remedy is available. In an exceptional cases which warrants the interference under Article 226 of the Constitution, the High Court may invoke the extraordinary jurisdiction in these words: "11. Before discussing the fact proposition, we would not....
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.... of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp. 343-45, paras 12-14) "12. In Thansingh Nathmal v. Supt. of Taxes this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) '7. ... 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 the 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.' 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court ....
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.... Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan.) 14. In Union of India v. Guwahati Carbon Ltd. this Court has reiterated the aforesaid principle and observed: (SCC p. 653, para 8) "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23) '23. ... [when] a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.'" 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been pas....
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....der to a total violation of principles of natural justice. This Court, therefore, holds that if an extraordinary case is made out, even if, a remedy by way of a statutory appeal is available, the Court can exercise the power of judicial review under Article 226 of the Constitution. Another point has been canvassed before this Court that once the petitioners have exhausted the statutory remedy by preferring an appeal before the Appellate Authority, the subsequent challenge to the original order under Article 226 is not permissible. As indicated above, the appeal before the Appellate Authority as well as the tribunal was dismissed solely on the ground that the Appellate Authority is not empowered to condone the delay beyond the prescribed limit, meaning thereby, no conscious decision on merit was arrived. In case of Gojer Bros (Pvt.) Ltd. -v- Ratan Lal Singh reported in AIR 1974 SC 1380, it is held that the plea of merger depends on the nature of the appellate or revisional order. The reliance was placed to an earlier judgment of the Supreme Court rendered in case of Pilot U.J.S. Chopra -v- State of Bombay reported in AIR 1955 SC 633 wherein it is held that the judgment pron....
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.... 9 Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed. In the circumstances of the case we make no order as to costs." The law enunciated in the above noted report can be summarized as follows: (i) The power of the High Court under Article 226 of the Constitution is not excluded merely because the alternative efficacious remedy is provided in the statute. It is a self-imposed restrictions and depends upon the facts of the each case and, therefore, is more a rule of discretion than of compulsion. The power of judicial review can be exercised where remedy available under the statute is not effective but mere formality with no substantial relief, where the statutory authority have acted in violation of the statutory provision or not acted in accordance therewith where the decision of the statutory authority is incomplete defiance of the fundamental principles of....