Andhra HC (Pre-Telangana)
M/S. K.V. Narayana Reddy,Middela ... vs The Additional Commissioner,O/O. The ... on 20 February, 2015
Author: Sanjay Kumar
Bench: Sanjay Kumar
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR
Writ Petition No.162 of 2015
20-02-2015
M/s. K.V. Narayana Reddy,Middela Village,Narsapuram Mandal,Kadapa District,
Andhra Pradesh. Petitioner
The Additional Commissioner,O/o. The Commissioner of Customs,Central Excise and
Service Tax,Tirupathi and others..Respondents
For the petitioner:Sri K. Raji Reddy
For Respondents 1 & 2:Sri Jalakam Satyaram
<Gist:
>Head Note:
? CITATIONS:
1) 2008 (221) ELT 163 (SC)
2) (2008) 7 SCC 169
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
Writ Petition No.162 of 2015
DATED:20.02.2015
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
Writ Petition No.162 of 2015
Order: (per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)
This writ petition has been filed by the petitioner asking for a writ of
mandamus declaring the action of the 1st respondent in levying Service
Tax on the works undertaken by the petitioner as illegal, arbitrary and
consequently set aside the Original Order dated __.1/2014 passed by the
1st respondent for the period 2011-2012.
Going by the petitioners own case, the order aforesaid challenged
before us was unsuccessfully taken to the appellate authorities under
statute successively and both these authorities refused to entertain the
same as they were presented not only beyond the period of limitation
prescribed therefor, but also beyond the condonable period. On identical
fact and issue, we have delivered a judgment on 29.1.2015 in Writ Petition
No. 1409 of 2015 between M/s. Resolute Electronics Private Limited
and Union of India, wherein, we have observed in paragraphs 5 and 6
thereof as follows:
5. We think that the petitioner keeping eyes open allowed the
period for preferring the appeal as well as that of for condonation of delay
allowed to expire and thereafter he approached. In other words, the
petitioner had fitter away its own remedy. Therefore alleged situation of
remediless is its own creation. According to us, the provision of Section
35(1) of the Act is absolutely rigid and cannot be extended either directly
or indirectly by the Court of law. We set out the provision of Section 35(1)
of the Act hereunder:
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), 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.
6. It is clear that it is specific mandate that even Section 5 of
the Limitation Act, 1963 by virtue of Section 29(2) thereof, will not be
applicable beyond 90 days. We are further of the view that once this
period is allowed to expire intentionally or unintentionally, then remedy is
absolutely barred and no Court of law can entertain the matter. However,
the petitioner availed alternative remedy unsuccessfully, so we are not
considering this aspect in great detail.
The aforesaid conclusion of ours is in consonance with the judgment
of the Honble Supreme Court in Singh Enterprises vs. Commissioner
of Central Excise, Jamshedpur , though we did not have the occasion
to see the same. Para-8 of the said judgment is relevant for our purpose,
which reads as follows:
The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of Statute are vested with jurisdiction to condone
the delay beyond the permissible period provided under the statute. The
period upto which the prayer for condonation can be accepted is
statutorily provided. It was submitted that the logic of Section 5 of the
Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for
condonation of delay. The first proviso to Section 35 makes the position
clear that the appeal has to be preferred within three months from the
date of communication to him of the decision or order. However, if the
Commissioner is satisfied that the appellant was prevented by sufficient
cause from presenting the appeal within the aforesaid period of 60 days,
he can allow it to be presented within a further period of 30 days. In other
words, this clearly shows that the appeal has to be filed within 60 days but
in terms of the proviso further 30 days time can be granted by the
appellate authority to entertain the appeal. The proviso to sub-section (1)
of Section 35 makes the position crystal clear that the appellate authority
has no power to allow the appeal to be presented beyond the period of 30
days. The language used makes the position clear that the legislature
intended the appellate authority to entertain the appeal by condoning
delay only upto 30 days after the 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.
Now, a copy of our judgment was supplied to the learned counsel
for the appellant, who after considering the same submits citing a decision
of the Supreme Court in the case of Consolidated Engineering
Enterprises vs. Principal Secretary, Irrigation Department and
Others , that attempt to prefer appeal unsuccessfully before the appellate
authority, does not preclude the petitioner from maintaining the writ as at
present his client is remediless.
We are of the view that the aforesaid judgment of the Supreme
Court cited by the learned counsel is miles away from the point involved
herein. In the case reported before the Supreme Court, the question was
whether time taken for prosecuting the proceedings bona fide under
Section 14 of the Limitation Act should be applicable or not.
Here, the issue is after availing the remedy unsuccessfully before
another Court whether we can accept the challenge to the self same order,
which has reached its finality under writ jurisdiction or not. According to
us, it is not legally permissible, if it is done the writ court will unsettle a
legally settled position. We think that when appellate authority has
already decided the matter against the petitioner, the writ Court is
debarred from doing so as the same binds the writ Court applying the
principle of res judicata, particularly, when the appellate authoritys orders
are not challenged in the writ jurisdiction. Thus, we reject the contention
of the learned counsel for the writ petitioner.
The writ petition is not maintainable. Accordingly, we dismiss the
same.
Consequently, pending miscellaneous applications shall also stand
closed. No order as to costs.
__________________
K.J. SENGUPTA, CJ
_________________
SANJAY KUMAR, J
20th February, 2015