TaxTMI 
TaxTMI 
2018 (3) TMI 767
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.... petition under Article 226 of the Constitution would not lie against an Order-in-Original passed under the Central Excise Act, 1944 (for brevity, the Act of 1944), once the statutory remedy of appeal against the said order stood foreclosed by the law of limitation. In the cases on hand, Electronics Corporation of India Limited, the writ petitioner, was visited with two Orders-in-Original dated 21.10.2014 passed by the Assistant Commissioner of Customs and Central Excise, Hyderabad, holding it liable to pay interest under Section 11AA of the Act of 1944. These orders are sought to be challenged in the present writ petitions. W.P.No.9482 of 2017 relates to the Order-in-Original No.4/2014-PA levying interest for the years 2009-10 and 2010-11, while W.P.No.9485 of 2017 pertains to the Order-in-Original No.2/2014-PA levying interest for 2008-09. These Orders-in-Original dated 21.10.2014 were appealable under Section 35 of the Act of 1944 but as per the said provision, such appeals had to be filed within sixty days ordinarily and the appellate authority was empowered to condone delay only up to thirty days thereafter, provided sufficient cause was shown. Admittedly, the petitioner com....
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....in deserving cases. He would further submit that the view taken in M/s. RESOLUTE ELECTRONICS PVT. LTD. and STAR ENTERPRISES that when orders of the appellate authority/Tribunal are not subjected to challenge, it would not be open to the writ Court to entertain an independent challenge against the Order-in-Original which stood confirmed by the dismissal of such appeals, also requires reconsideration as the dismissal of such appeals would not be on the merits of the matter but based on the procedural technicality of such appeals being time-barred. It would be apposite to note the statutory scheme of the Act of 1944 in this regard: Section 35(1) thereof states that any person aggrieved by any decision or order passed under the said Act by a Central Excise Officer lower in rank to a Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of communication to him of such decision or order. The proviso thereto states that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforestated ....
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..... The Division Bench observed that the issue was whether, after availing of the remedy unsuccessfully before another forum, this Court could accept a challenge under writ jurisdiction to the self-same order, which had reached finality. The Division Bench opined that it was not legally permissible, as the writ Court would then unsettle a legally settled position. It was further observed that when the appellate authority had already decided the matter against the petitioner, the writ Court would be debarred from doing so and the same would bind the writ Court, applying the principle of res judicata, particularly, when the appellate authorities orders were not challenged in writ jurisdiction. At this stage we may note, with due respect, that absence of challenge to the orders of the appellate authority and the Tribunal in the circumstances obtaining cannot be a factor for non-suiting the petitioner company. It must be kept in mind that dismissal of the appeals by the appellate authority and, thereafter, by the Tribunal, was only on the ground of limitation and not on the merits of the matter. A decision based purely on technicalities would not be binding on the writ Court on the stre....
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....MAR V/s. UNION OF INDIA (1997) 3 SCC 261, the Supreme Court reiterated that writ jurisdiction conferred upon the High Court under Article 226 of the Constitution is part of the inviolable basic structure of the Constitution. In this regard, it may also be noted that the Tribunal traces its origin to Article 323B of the Constitution. Exercise of writ jurisdiction under Article 226 vis--vis the subject matter of adjudication before Special Tribunals constituted under Article 323B of the Constitution fell for consideration before the Supreme Court in L.CHANDRA KUMAR (1997) 3 SCC 261. Holding that such Tribunals were not substitutes for the writ Court exercising jurisdiction under Article 226 of the Constitution, a Constitution Bench of seven Judges again reiterated that the power of judicial review vesting in the High Court under Article 226 is integral to and an essential feature of the Constitution, forming part of its basic structure. We find that in PANOLI INTERMEDIATE (INDIA) PVT. LTD, a Full Bench of the Gujarat High Court had occasion to consider the issue of maintainability of a writ petition in identical circumstances. The matter went before the said Full Bench upon referen....
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....bserving that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that (A) the petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that (A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or (A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. (B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by sa....