Judicial review under Article 226 cannot be restricted by statutory limitations; writ petitions can challenge Orders-in-Original even if appeals are time-barred.

1. The reference made by a Division Bench comprising one of us, SK,J, and another learned Judge, vide order dated 04.08.2017 in these writ petitions, led to the constitution of this Full Bench. The question raised before us is whether the decisions of this Court in M/s. RESOLUTE ELECTRONICS PVT. LTD. V/s. UNION OF INDIA , 2015 (319) ELT 51 (AP) and STAR ENTERPRISES V/s. JOINT COMMISSIONER, GUNTUR , 2016 (41) S.T.R. 20 (A.P.), require reconsideration. By these decisions, a Division Bench of this Court had held that a writ petition under Art.226 of the Constitution would not lie against an Order - in - Original passed under the Central Excise Act, 1944 (for brevity, the Act of 1944), once the statutory remedy of appeal against the said order stood foreclosed by the law of limitation.

2. In the cases on hand, Electronics Corporation of India Limited, the writ petitioner, was visited with two Orders - in - Original dated 21.10.2014 passed by the Assistant Commissioner of Customs and Central Excise, Hyderabad, holding it liable to pay interest under S.11AA of the Act of 1944. These orders are sought to be challenged in the present writ petitions. W.P.No.9482 of 2017 relates to the Order - in - Original No.4/2014 - PA levying interest for the years 2009-10 and 2010-11, while W.P.No.9485 of 2017 pertains to the Order - in - Original No.2/2014 - PA levying interest for 2008-09.

3. These Orders - in - Original dated 21.10.2014 were appealable under S.35 of the Act of 1944 but as per the said provision, such appeals had to be filed within sixty days ordinarily and the appellate authority was empowered to condone delay only up to thirty days thereafter, provided sufficient cause was shown. Admittedly, the petitioner company filed appeals impugning the Orders - in - Original dated 21.10.2014 long after the prescribed period. The appeals were filed by it only on 02.02.2016 along with applications to condone the delay. By separate orders dated 31.05.2016, the Commissioner (Appeals) opined that he could not condone the delay beyond the prescribed extended period of thirty days and dismissed the appeals on the ground of limitation. The petitioner company thereupon preferred appeals before the jurisdictional Customs, Excise & Service Tax Appellate Tribunal (hereinafter, the Tribunal). By common order dated 03.01.2017, the Tribunal affirmed the orders of the Commissioner (Appeals) opining that there was no infirmity therein, as per the law laid down by the Supreme Court in SINGH ENTERPRISES V/s. COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR , 2008 (221) ELT 163 (SC) : 2008 (3) SCC 70. The petitioner company then filed these writ petitions assailing the Orders - in - Original dated 21.10.2014.

4. While so, in the light of the above referred judgments of a co - ordinate Bench holding to the effect that a writ petition would not lie in these circumstances but taking note of a contrary judgment of a Full Bench of the Gujarat High Court in PANOLI INTERMEDIATE (INDIA) PVT. LTD. V/s. UNION OF INDIA, 2015 (326) ELT 532 (Gujarat.), the aforestated Division Bench made the reference on the question of maintainability of these writ petitions.

5. Be it noted that the decisions in M/s. RESOLUTE ELECTRONICS PVT. LTD., 2015 (319) ELT 51 (AP), and STAR ENTERPRISES, 2016 (41) S.T.R. 20 (A.P.) were rendered by a Division Bench comprising the then Honble The Chief Justice and one of us, SK,J. In both those cases, the writ petitioners had unsuccessfully availed the appellate remedy but were turn