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2026 Supreme(Online)(Ker) 49870
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Johnson John, J
M/S. AGRO MANURES AND CHEMICAL (INDIA) PVT.LTD – Appellant
Versus
THE ADDITIONAL COMMISSIONER – Respondent
WP(C) NO. 16824 OF 2019
For the Appellants/Petitioners: K.J. Abraham
For the Respondents: Sreelal N. Warrier
A writ petition challenging a final order is liable to be dismissed if there is an inordinate, unexplained delay in filing, especially when a statutory appeal remedy was available but not pursued, upholding the principle of finality of litigation.
Headnote:(A) Writ Jurisdiction - Delay and Laches - Filing a writ petition after the statutory period for appeal has expired without a satisfactory explanation for the delay is impermissible, as the court's power under Article 226 is discretionary and requires the party to approach the court within a reasonable time. (Para 7, 8)
(B) Finality of Litigation - Public Policy - Once an order has attained finality through the failure to pursue statutory remedies, it cannot be re-agitated through a belated writ petition, based on the maxim 'interest reipublicae ut sit finis litium'. (Para 9, 10)
Issues: Whether a writ petition can be entertained when the statutory appeal period has expired and there is an inordinate delay in approaching the court without a valid explanation.
| Table of Content |
|---|
| 1. challenge to excise registration and the timeline of statutory appeals. (Para 1 , 2 , 3) |
| 2. arguments on invoking writ jurisdiction despite time-barred statutory appeals. (Para 4 , 5) |
| 3. court's analysis of discretionary power under article 226 and statutory limitations. (Para 6 , 7 , 8) |
| 4. application of the principle of finality of litigation to dismiss belated petitions. (Para 9 , 10) |
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.08.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JOHNSON JOHN, J.
J U D G M E N T
1. The writ petitioner is challenging Ext. P1 order dated 29.02.2016 of the Commissioner of Central Excise and Customs and Ext.P4 order in appeal passed by the appellate authority under Section 35 of the Central Excise Act, 1944 (‘the Act’ for short) on the ground that the petitioner is not liable to be registered under the Central Excise Act and not liable to pay the Central Excise Duty on the ground that the activity carried out by the petitioner is not one coming under ‘manufacture’ as defined under Section 2(f) of the Act, 1944.
2. Heard Sri. Abraham K.J., the learned counsel for the petitioner and Sri. Sreelal N. Warrier, the learned Standing Counsel appearing for the respondents.
3. Ext.P4 order in appeal passed by the appellate authority under Section 35 of the Act is dated 28.11.2018 and admittedly, the petitioner herein has not filed any appeal to the Appellate Tribunal under Section 35 B of the Act within three months from the date on which the order sought to be appealed against is communicated. The present writ petition is filed only on 25.10.2019, though the impugned order is dated 28.11.2018.
4. The learned counsel for the petitioner argued that the writ jurisdiction can be invoked for challenging adjudication order even after appeal remedy is time barred and he relied on a decision of the High Court of Karnataka in Phoenix Plasts Company v. Commissioner of Central Excise (Appeal-I) [(2016) 69 taxmann.com 140].
5. But, the learned Standing Counsel for the respondents pointed out that in the present writ petition, there is no averment as to what prevented the petitioner from filing the writ petition immediately after the impugned order and there is also no specific averment to indicate that the order under challenge is without jurisdiction.
6. In M/s. Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and others [2008 KHC 4531], the Hon’ble Supreme Court held that the Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay and that the proviso to sub-section (1) of Section 35 of the Act clearly shows that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days.
7. It is not in dispute that the appellate authority passed Ext.P4 order under Section 35 of the Act on 28.11.2018 and the petitioner has not chosen to file any appeal to the Appellate Tribunal under Section 35 B of the Act within the prescribed period and instead, he filed the present writ petition on 25.10.2019 without any explanation for the delay in filing the writ petition. Though there is no prescribed period of limitation for filing writ petition under Article 226 of the Constitution of India, it is well settled that the parties have to approach the court within a reasonable period and the exercise of the courts powers are entirely discretionary. There is a specific provision in the Central Excise Act, 1944 for filing appeal to the Appellate Tribunal and sub-clause 3 of Section 35 B of the Act provides that the said appeal shall be filed within three months.
8. As noticed earlier, nothing is mentioned in the writ petition as to what prevented the petitioner from filing the writ petition immediately after Ext.P4 order of the appellate authority and further, there is also nothing to indicate that there is any jurisd
