TaxTMI 
TaxTMI 
2015 (7) TMI 303
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.... whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal? (3.) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? 2. As such, the background of the matters are that the petitioner of SCA No.18542/14 had preferred appeal before the Customs, Central Excise & Service Tax Appellate Tribunal (Ahmedabad), against the order passed by the Commissioner of Central Excise (Appeals), which arose from the order passed by the adjudicating authority being Order in Original. In the said appeal there was delay of 118 days in preferring appeal and therefore, the Tribunal dismissed the appeal on the ground of delay since as per the Tribunal, there was no power to condone the delay beyond 30 days. Under the circumstances, the said petition. When the appeal came up for hearing before the Division Bench of this Court, the Division Bench noticed that since as per the provisions of section 35 of the Central Excise Act, ....
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....s Court which referred the matter to the larger bench and in his submission even if the referral Bench was of the view that the matter deserves to be referred to the Larger Bench, it was required for the referral bench to record the reasons for disagreement and thereafter only the matter could be referred to the Larger Bench. He submitted that in the order dated 06.01.2015 passed by the referral bench of this Court in SCA No.18542/14, there are no reasons recorded for disagreement nor any reasons are recorded for referring the matter to the larger bench and therefore, he submitted that there was no valid reason for the referral bench to refer the matter to the larger bench and hence, the reference can be said as incompetent to the larger bench. 6. Whereas, Mr. Parikh, learned counsel appearing for the respondents in SCA No.13530/14 supported the order and submitted that when the questions are formulated and referred to the Larger Bench, the Larger Bench may examine the questions and express the view and the reference may not be termed as incompetent. 7. In order to appreciate the contention, we may record that the referral order of the Division Bench dated 06.01.2015 in SCA N....
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....only such delay can be condoned in a Writ Petition under Article 226 of the Constitution of India. 4. Therefore, we are of the opinion that the matter is required to be referred to a Larger Bench for decision. We formulate the following questions for decision by the Larger Bench of this Court: (1.) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal? (3.) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? 5. We refer the aforesaid t....
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....f us), Akil Kureshi & R.M. Chhaya, J.J.) in the case of Jayendrasinh Bhupatsinh Diama vs. State of Gujarat through Additional Secretary (Inquiry) reported at 2012(2) GLR page 1096 wherein also, the preliminary contention was raised that the reference to the Larger Bench by the learned Single Judge was uncalled for. This Court in the said decision, by relying on the earlier decision of the Larger Bench of this Court, observed from paras 4 to 8 as under: "4. The first preliminary contention was raised by the learned Counsel for the respondent No.5 that the learned Single Judge, as per the law of precedents, was bound by the view taken by the Division Bench of this Court on the aspects of maintainability of the appeal against the resolution of the Gram Panchayat for 'motion of no confidence' and, therefore, the learned Single Judge could not have referred the matter to the Larger Bench. He submitted that, therefore, the present reference was not called for. The learned Counsel, in support of his submission, relied upon the observations of the Apex Court in the case of Pradip Chandra Parija & Ors. v. Pramod chandra Patnaik & Ors.reported in (2002) 1 SCC, 1. 5. We may reco....
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....s not express and is not founded on reason nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union territory of Pandicherry (AIR 1967 SC 1480) it was observed that 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.' Any declaration or conclusion arrived without application of mind cannot be deemed to be declaration of law or authority of a general nature binding as precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law." 23. The another decision of the Apex Court also needs to be cited on the point as in case of Sundarjas Kanyalal Bhathija v. Collector Thane reported in (1989) 3 SCC 396 the Apex Court has observed as under " 21. Chief Justice Pathak in recent decision stressed the need for clear and consistent enunciation of leg....
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....ingle Judges and Division Benches in respect of Sections 242, 249 and 259, hence the matter is in fact requires to be referred to a larger bench under Rule 5 of the Gujarat High Court Rules 1993 which reads as under: "Rule 5: (1) A Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two Judges or a Larger Bench. (2) A Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under subrule (1)above to a Larger Bench. 25. On the question as to whether a Single Judge of this Court can directly refer the matter to Larger Bench or it has to be referred only to the Division Bench, the full bench of this Court has in case of Ram Fertilizers Pvt. Ltd and another v. State of Gujarat and another reported in 2001 (1) G.L.H. 698 held as under : "4.1 It will be seen from the provisions of of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two or more Judges or a Larger Bench. The rule does not require any reason for being recorded for the purpose and it is sufficie....
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....imilar contention was raised, which has been dealt with by the Larger Bench at paragraph at 5 as under: "At the out set, we consider it appropriate to record that as on the question raised before the learned Single Judge the earlier Single Bench decision of this Court in Narmadaben V. Parmar (supra) was relied on, in which reliance was placed on Division Bench decision of this Court in Chimanbhai R. Patel (supra) which was binding precedent on her, an order of reference to a Bench larger than of Two Judges was not required, unless the learned Single Judge would have expressed a dissenting opinion on the question of law involved in the case. None the less, since both the Letters Patent Appeals and Special Civil Applications raising a question of law of general importance have been placed before us, we proceed to decide the same on merits." 8. In the decision of the Apex Court in the case of Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik & Ors. (supra) when the matters were placed before the Larger Bench, the Bench who heard the reference found that two Judges' Bench could not have referred the matter to the Constitutional Bench and, therefore, did not examine the a....
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....ovision shows that any person aggrieved by the decision or the order of the Central Excise Officer may appeal to the Commissioner of Central Excise (Appeals) within a period of 60 days and it is further provided that the Commissioner (Appeals) if is satisfied that the appellant was prevented by sufficient cause, he may allow the appeal to be presented within further period of 30 days. 13. In the case of D.R. Industries Ltd. (supra), the Division Bench of this Court had an occasion to examine the scope and ambit of section 35 of the Act and it was observed at paragraphs 16 to 18, as under: "16. Similarly, whether a person is aggrieved by an order of the Commissioner of Central Excise as the original authority or by an order of the Commissioner (Appeals) as the appellate authority, the period of limitation for approaching the Appellate Tribunal is the same, whether the aggrieved party is an assessee or the revenue. Thus, there is no discrimination in the matter of the length of period for which the delay can be condoned by the Appellate Tribunal, whether the appellant is an assessee or the revenue. 17. In view of the above discussion, it is not necessary to refer to or deal ....
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.... view that the power to condone delay by the Commissioner (Appeals) is for a period of 30 days after the expiry of the limitation period of 60 days, but while further considering the extraordinary cases where gross injustice has been done by the adjudicating authority but the assessee could not prefer appeal within the outer limit of 90 days, it was observed that the assessee can invoke the power of this Court under Article 226 of the Constitution, but of course not as of right. Thereafter, the Division Bench in the said case permitted the petitioner therein to file the petition under Article 226 of the Constitution. 15. In the case of Amitara Industries Ltd. (supra), the another Division Bench of this Court observed at paragraph 12, as under: "12........Thus the total length of delay being very small and with extremely good ground on merit to sustain, we are of the opinion that non interference at this stage would cause gross injustice to the petitioner. Therefore, we need to step in by invoking extraordinary jurisdiction." 16. In the said case, the Division Bench of this Court had relied upon the earlier decision of this Court in the case of D.R. Industries Ltd. (supra).....
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....er, as per the above referred decisions of the various Division Bench of this Court, it can be said that the legal position prevailing uptil now are as under - (1) The appeal deserves to be preferred within the prescribed time limit as per section 35 of the Act and the delay beyond the period of 30 days cannot be condoned by the appellate authority. Hence, the outer limit of preferring appeal including the period for condonation of delay could be said as 90 days. (2) In exceptional cases, where it is a case of "gross injustice", the aggrieved person can invoke the writ jurisdiction under Article 226 of the Constitution and if the Court is satisfied that it is an exceptional case of gross injustice, the power under Article 226 can be exercised. 21. Mr.Dave, learned counsel appearing for the petitioners contended that the view taken by the Division Bench of this Court in the case of D.R. Industries Ltd. (supra) is consistently followed by this Court in large number of its subsequent decisions since 2008 and this Court has exercised the power under Article 226 of the Constitution where it was found that gross injustice would be caused if no interference is made on the ground ....
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....itution. As such, the question is no more res integra when the jurisdiction of the High Court to entertain the petition for writ of certiorari under Article 226 of the constitution or power of superintendence under Article 227 of the Constitution against the orders are to be considered. It can hardly be disputed that the power of this Court under Articles 226 and 227 of the Constitution are conferred by the Constitution and cannot be diluted or nullified by any statute or legislation. At this stage, useful reference can be made to the decision of the Apex Court in the case of Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 wherein the question came up for consideration before the Apex Court as to whether the amendment made in the Code of Civil Procedure under section 115 would in any manner affect the jurisdiction under Articles 226 and 227 of the Constitution. The Apex Court in the said decision, after considering various decisions, concluded at para 38 as under: "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 No.46 of 1999 with effe....
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....upervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of 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 covert itself into a Court of Appeal and indulge in reappreciation or evalu....
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....ported at (2005) 1 SCC 481, wherein while considering the aspects as to whether any legislation subordinate to the Constitution can whittle down the power under the Constitution of the Apex Court under Article 226 of the Constitution. It was held that any legislation subordinate to the Constitution cannot whittle down the jurisdiction and power conferred on the constitutional courts of the country. 25. Once again, in the case of Salem Advocate Bar Association, T.N. vs. Union of India reported at (2005) 6 SCC 344, the question arose before the Apex Court was as to whether amendment made under section 115 of the Code of Civil Procedure would take away the constitutional jurisdiction of the High Court or not. It was held by the Apex Court after considering the earlier decision of the Apex Court in the case of Surya Dev Rai (supra) that curtailment of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure does not take away and could not have taken away the constitutional jurisdiction of the High Court. But it was also further held that the power exists, untrammeled by the amendment in Section 115 and is available to be exercised subject to rules ....
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....ile exercising the power has to apply self restraint. It was well summed up by the Apex Court in the case of Surya Dev Rai (supra) that the power is there but the exercise is discretionary which will be solely governed by the dictate of the judicial conscience, enriched by judicial experience and practical wisdom of the Judge. 28. The aforesaid discussion goes to show that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. 29. In the decision of the Apex Court in the case....