Raman, J.

1. When W.P.(C) No.35318 of 2008 was taken up for hearing, W.P.(C) No. 37168 of 2009, though not listed today, on agreement between the parties, was called up, since the question raised in both the writ petitions is one and the same.

2. For the purpose of appreciation of question of law arising for consideration, it will be sufficient to refer to the facts relating to W.P.(C) No. 35318/2008.

3. Petitioner is a partnership firm, registered as a service provider. The petitioner submits that the petitioner has been providing clearing and forwarding agent's service to Abbot India Ltd., in terms of specific agreement between the parties. Ext.P1 produced for identification. Ext.P2 is another agreement. According to the petitioner, service tax is not payable on the reimbursed amount and the service tax on the entire commission was paid by the petitioner. The authorities did not accept this contention and Ext.P3 show cause notice was issued as to why the alleged difference in service tax should not be demanded from him. The petitioner submitted Ext.P4 reply. The adjudicating authority rejected the contention in Ext.P4 and confirmed the demand. The petitioner was also imposed a penalty under section 78 of the Finance Act, 1994. Separate penalty under section 76 of the Finance Act was also imposed. A copy of the order is produced as Ext.P5. The order was received at the office of the petitioner on 24-4-2008. Though the petitioner is entitled to prefer a statutory appeal against the said order before the 3rd respondent within three months, as prescribed under section 85 of the Finance Act, he did not invoke the appellate remedy within time. Obviously, for the reason that power to condone the delay by the appellate authority is limited for a period of three months which also expired on 24-10-2008. Since the petitioner could not file a statutory appeal, the petitioner has approached this Court by filing this writ petition.

4. According to the petitioner, the person in charge of the affairs and dealing with the tax matters had left the service without intimating the fact of receipt of Ext.P5. Only later when the petitioner was served with notice dated 3-11-2008, which was received on 7-11-2008, he came to know about Ext.P5 order.

5. When the matter came up before the learned Single Judge of this Court, the respondents relying on a Division Bench decision of this Court in Asst. Commissioner of Central Excise V. Krishna Poduval (2005(4) KLT 947) contended that once the period of limitation has run out for filing the appeal and when the authority had no power to condone the delay beyond the maximum period prescribed thereunder, the remedy of the petitioner has come to an end and no cause survives thereafter to entertain the writ petition. But, according to the learned counsel for the petitioner, the principle laid down in the above decision may not be correct and power under Article 226 of the Constitution of India still would be available, even if statutory remedy is not available. The learned Single Judge doubting the correctness of the decision reported in the Assistant Commissioner of Central Excise case (Supra) adjourned the case to be considered by a Division Bench. Accordingly, we heard the matter.

6. W.P.(C) No. 37168 of 2009 was also filed in similar circumstances.

7. Learned counsel Sri.Jayasankar appearing on behalf of the petitioner submits that an alternate remedy by way of an appeal is not a bar for entertaining a writ petition under Article 226 of t he Constitution of India. According to him, at least when situation warrants and there are exceptional circumstances, remedy by way of writ petition under Article 226 of the Constitution of India is still available. The petitioner placed reliance on a decision of the Madras High Court in Rayalseema Constructions and another V. Deputy Commercial Tax Officer, Mannady Division, Madras I, and others ((1959)10 STC 345) and two decisions of the Supreme Court in K.