Kaizen Organics Pvt. Ltd. vs. UOI (2013) 293 ELT 326 (Raj.)
The petitioner is a manufacturer of menthol powder, menthol crystal, D.M.O. and menthol oil and engaged in exporting them without payment of duty under Rule 19 of the Rules. Between October 2005 to April 2006, it accordingly cleared six consignments for export under the letter of undertaking submitted to the jurisdictional Assistant Commissioner, Central Excise. It also submitted the proof of export before the said authority for acceptance under the above provision of the Rules, where after the said authority accepted the same. It was thereafter that, by letter dated 26-10-2006, that the said authority withdrew the acceptance of the proof of export covering the consignments. Though meanwhile, as the petitioner claims, the consignments had been duly exported after being inspected by the customs authorities at the port concerned, in terms of the relevant instructions issued by the Central Board of Excise & Customs. A show-cause notice dated 27-10-2006 followed, encompassing all the six consignments requiring the petitioner to show cause as to why the central excise duty of Rs. 69,73,481 would not be recovered from it u/s. 11A of the Act, together with interest contemplated under section 11AB thereof.
The petitioner’s/assessee’s appeal before the Commissioner (Appeals), and the revision u/s. 35EE against the proposed consequential action for realisation of central excise duty with interest and penalty, having been rejected, filed a writ before the Court for relief. The petitioner incidentally had preferred appeal before the Central Excise Service Tax Appellate Tribunal.
The Tribunal having rejected the appeal as not maintainable, as the subject-matter thereof was covered by the eventualities contemplated in clauses (b) & (c) enumerated under the proviso to Section 35B(1), it thereafter sought refuge u/s. 35EE of the Act and preferred a revision thereunder. As admittedly, the revision application was at the time of institution was not only barred by time in terms of s/s. (2) of section 35EE, but also beyond the period extendable by the revisional authority under the proviso thereto, interference was declined on the ground of bar of limitation. Contending that as the petitioner had been pursuing its relief bona fide before the wrong forum i.e. the Tribunal, the learned revisional authority ought to have adjudicated its application u/s. 35EE on merits, the petitioner has sought the remedial intervention of the Court.
The petitioner’s revision u/s. 35EE has been dismissed only on the ground of delay without any adjudication on merits, there is no merger thereof with the decision of the Commissioner (Appeals) and thus, it is entitled to lay its challenge to the impugned actions of the respondent authorities under Article 226 of the Constitution of India, independently de hors such dismissal.
However, the above rejection of the petitioner’s revision application u/s. 35EE being only on the ground of limitation and not on merits, the arguments against merger thereof with the order of the Commissioner (Appeals), Jaipur has substance.
