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 HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND                
Writ Petition No.1409 of 2015

29-1-2015

M/s.Resolute Electronics Private Limited(previously known as QUAD Electronic
Solutions Private Limited), #12-50/4/A
   Next to Industrial Estate, Medchal Hyderabad  501401 R.R. District  Rep. by
its Managing Director----Petitioner
               
Union of India Ministry of Finance North Block, New Delhi Rep. by its Secretary
and others Respondents  

COUNSEL FOR PETITIONER: Sri Vedula Srinivas    

COUNSEL FOR RESPONDENT :Sri V. Gopalakrishna Gokhaley        

<GIST:

>HEAD NOTE:  

?CITATIONS:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
 AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.1409 OF 2015    

ORDER: (per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)

        This writ petition has been filed by the petitioner  assessee
challenging the order dt.17.7.2013 passed by the Additional Commissioner
of Customs, Central Excise and Service Tax.
        We have heard Sri Vedula Srinivas, learned counsel for the
petitioner, and Sri V. Gopalakrishna Gokhaley, learned counsel for the
respondents.
      By the impugned order the Commissioner confirmed the demand as
raised under Section 11A of the Central Excise Act, 1944 (hereinafter
referred to as the Act) and also imposed penalty of Rs.5,00,000/-.  The
aforesaid order was taken to appellate authority by the assessee with an
application for condonation of the delay.  However, the said appellate
authority by order dt.26.2.2014 dismissed the application for condonation
of delay observing that the appeal was presented beyond the condonable
period, namely, the period that could be condonable under Section 35(1)
of the Central Excise Act.  Consequently, the appellate authority dismissed
the appeal.  This order of the appellate authority is not challenged before
us.  Thereafter, the assessee approached the learned Tribunal, namely,
the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench,
Bangalore, by second appeal and the learned Tribunal dismissed the same
as it was time barred holding that the appellant authority had no power to
condone the delay overriding the provision of Section 35(1) of the Act.
So, that appeal was also dismissed.  In the writ petition, the aforesaid two
orders of the two appellate authorities are not challenged.  Thus, it
appears that the petitioner, after exhausting all the remedies, filed this
writ petition.
2.      However, the learned counsel for the petitioner argues that in
essence the petitioner has no remedy as the appeal could not be filed
within the condonable period.  He further submits, with the support of the
decision of the Supreme Court in the case of Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others , that when there is no
remedy, then the alternative remedy is not a bar to entertain the writ
petition.
3.      We do not find that this judgment cited has any manner of
application in this factual backdrop, as the writ petitioner has approached
all the authorities unsuccessfully and no challenge has been made against
these orders.  Therefore, the writ petition on the factual backdrop is not
entertainable at all.
4.      Now we consider the petitioners second contention that resorting
to alternative remedy by preferring appeals knowingly being fruitless, is of
no legal implication, as virtually the petitioner is now remediless, so much
so it can come to Writ Court.
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.
7.      Accordingly, this writ petition is dismissed.
        Pending miscellaneous petitions, if any, shall also stand dismissed.
There will be no order as to costs.
       

________________________  
K.J. SENGUPTA, CJ  
_______________________  
SANJAY KUMAR, J        
29.1.2015