IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 WP(C).No. 28273 of 2011(H) ----------------------------------------- PETITIONER(S): ------------------------ K.V.AJEESH, KOTTUNGAL HOUSE, CHERUVALOOR P.O., KORATTY-680 321, THRISSUR DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON. RESPONDENT(S): --------------------------- 1. THE DEPUTY COMMISSIONER OF CENTRAL EXCISE & SERVICES TAX, THRISSUR DIVISION, S.T.NAGAR, THRISSUR-680 001. 2. UNION OF INDIA, REPRESENTED BY SECREATRY TO GOVERNMENT, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110 001. R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CENTRAL EXCISE R2 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28273/2011 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF AGREEMENT EXECUTED BETWEEN THE PETITIONER AND STEEL & INDUSTRIAL FORGINGS LTD. DTD. 27/06/2008. EXT.P2 COPY OF ORDER ISSUED BY THE IST RESPONDENT DTD. 07/02/2011. EXT.P3 COPY OF LETTER ISSUED BY THE SUPERINTENDENT OF CENTRAL EXCISE, THRISSUR RANGE TO THE PETITIONER DTD. 28/09/2011. RESPONDENTS' EXHIBITS : N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.28273 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of October, 2011 J U D G M E N T The petitioner has been assessed to service tax. Ext.P2 assessment order has been served on the petitioner. The petitioner challenges the same. The petitioner seeks consideration of the challenge against Ext.P2 assessment order directly by this Court without challenging the same in appeal as provided in the statute, on the ground that the period prescribed for filing appeal and the period for which the appellate authority has power to condone the delay is already over. The petitioner therefore seeks quashing of Ext.P2 order. The petitioner submits that in view of the illegality of the order notwithstanding the fact that the petitioner has not availed of the alternate remedy, this court should entertain the challenge against Ext.P2 assessment order. 2. I have heard the counsel for the petitioner. 3. The situation is squarely covered by a decision of a Division Bench of this Court in Assistant Commissioner of W.P.(C)No.28273 of 2011 -2- Central Excise v. Krishna Poduval [2005 (4) KLT 947], wherein the Division Bench has held that this court cannot in exercise of powers under Article 226 of the Constitution of India, condone delay in filing an appeal or even consider the challenge against an order, remedy against which has been barred by limitation. Even otherwise Ext.P2 order has been passed as early as on 01.03.2011 and the petitioner has been not able to satisfactorily explain the delay in challenging the same within a reasonable time. Still further the petitioner does not dispute the liability to pay service tax, but only disputes the liability to pay the penalty and interest. Interest and penalty are statutory, which the petitioner cannot avoid once the liability to pay service tax and non-payment of the same in time is admitted. In the above circumstances, I am not inclined to entertain this writ petition under Article 226 of the Constitution of India. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/