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Judgment
The Honourable Mr. Justice R. Sudhakar
These Writ Petitions have been filed by the Petitioner for a Writ of Certiorarified Mandamus, to call for the records relating to the Appeal orders passed by the first Respondent in Appeal Nos. and year CST 39/2007 and CST 151/2002 dated 09.02.2010 received by the Petitioner on 19.03.2010 and quash the same and to direct the first Respondent to pass orders after affording opportunity to the Petitioner for a personal hearing.
Heard Mr. A.S.Mujibur Rahman, Learned Counsel for the Petitioner and Mr. T.R. Janarthanam, learned Additional Government Pleader, who takes notice for the Respondents.
By consent, the writ petition itself is taken up for final disposal.
The Petitioner challenges the order of the Appellate Deputy Commissioner (CT), dated 09.02.2010. The Deputy Commercial Officer passed an order in respect of the assessment year 1995-1996 and 1996-1997 and demanded tax and penalty.
Challenging the assessment order and penalty levied, the appeal has been filed to the Appellate Deputy Commissioner (CT), who heard the case and disposed of the same on merits, after noting that the Petitioner/Appellant before the authority failed to appear on numerous occasions. i.e. to say nearly 38 occasions and as a last chance, it was listed on 04.02.2010 and even on that day, neither the Petitioner nor the authorised representative appeared before the appellate authority to prosecute their case. The first Respondent, however, went into the merits of the case and by a well reasoned order, dismissed the appeal, giving liberty to the Petitioner to file an appeal to the Tamil Nadu Sales Tax Appellate Tribunal Additional Bench, Madurai, if he is still aggrieved. The copy of the order is also furnished to the authorised representative.
Without choosing to file an appeal provided under the Statute, the Petitioner, after an inordinate delay of more than one year and four months, has come to this Court challenging the order inter alia contending that there has been a violation of principles of natural justice and the order as without jurisdiction.
The contention of the Petitioner that there has been a violation of principles of natural justice fails in view of the paragraph 6 of the order, where it has been clearly held that the Petitioner was given liberty to appear for more than 38 times and he failed to utilise such opportunity and therefore, he cannot be heard to say that the authority has failed to give proper opportunity and if such a plea is accepted, it would amount to mockery and abuse of judicial proceedings.
Insofar as the merits of the case challenging the order of the first Respondent/appellate authority is concerned, this Court is not inclined to go into the factual aspects of the case at this juncture. When there is an effective alternative remedy provided under law, the Petitioner has to pursue the same. No. case has been made out to invoke the extraordinary remedy under Article 226 of the Constitution of India.
In the affidavit filed in support of the writ petition, the Petitioner has relied upon the decision of the Honourable Apex Court in State of H.P. and Ors. v. Gujarat Ambuja Cement Ltd. and another, to point out as to when this Court will exercise its jurisdiction under Article 226 of Constitution of India. The case of the Petitioner does not fall within the parameters laid down by the Honourable Apex Court as none of the principles laid down will apply to the facts of the present case. To put it more succinctly, the converse is true. Ample opportunity was given to the Petitioner to put forth its case and he failed to utilise the same. The order passed by the authority giving detailed reasons is an appealable order. The writ Petitioner cannot therefore plea that it is without jurisdiction particularly when the Petitioner has approached the first appellate forum without demur as per the Statute, but omitted to pursue it thereon. Therefore the question of Petitioners fundamental rights being affected does not arise more so when the person failed to defend his claim prudently.
The Petitioner has failed to establish as to how he is entitled to invoke the extraordinary remedy under Article 226 of the Constitution of India, when the two issues raised are found to be factually and legally not tenable. The Petitioner''s attempt appears to over come the lapses on his part in not prosecuting the matter in time and the writ petition filed to find a way out the impasse.
The Petitioner therefore has to seek appropriate remedy under the statute and the authority will consider it as per statute. The limitation prescribed by the statute is binding on the authority and this view is fortified by the decision of the Honourable Apex Court in Miles India Limited v. Assistant Collector of Customs reported in 1987(30)E.L.T. 641 (SC) in which, it is held as follows:
After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor u/s 27(1) of the Customs Act, 1962, Learned Counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from No. infirmity. If really the payment of the duty was under a mistake of law, the Appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn.
As to the statutory limitation and how Courts should deal with it has been emphasised by the Honourable Apex Court in The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, as follows:
Where the legislature clearly declares its intent in the scheme and language of the statute it is the duty of the Courts to give effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver, more so if the statute is a taxing statue.
The delay in latches and lack of bonafides disentitles the Petitioner to the relief sought for.
In view of the above, this Court finds No. reason to entertain these writ petitions. Accordingly, these writ petitions are dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No. costs.