2016 (1) TMI 1111 - HC - Central Excise

Withholding of refund as allowed by the Central Excise (Appeals) - appellant submitted that no Revision Application or any other Petition by the revenue - Revenue submitted that the Revision Petition was sent within time to the address given in the preamble of the order passed by the Commissioner (Appeals) and, therefore, the contention that the 2nd respondent did not file any Revision before the 1st respondent is false and due to pendency of the Revision only the amount could not be paid and along with the Revision the Miscellaneous Application filed for early and out of turn hearing are pending, therefore, non payment of the amount is not due to any other reason and finally prayed to dismiss the Writ Petition. - The problem arouse due to change of address of revision authority Held that - No doubt, retention of huge amount would cause financial loss to the petitioners and at the same it will affect the Revenue of the Government. In such case, the Court has to strike a balance between the rights of both the parties and pass appropriate order by exercising jurisdiction under Article 226 of the Constitution of India. To avoid loss to any one of the parties to this Writ Petition, we find that it is a fit case to direct the 1st respondent to dispose of the Appeal pending before them, as expeditiously as possible, in any event not later than two months from the date of receipt of a copy of this order, by exercising an equitable jurisdiction conferred on this Court under Article 226 of the Constitution. Writ Petition disposed of.

Summary

Issues Involved:
1. Refund of Rs. 1,44,10,817/- CENVAT credit.
2. Filing and validity of the Revision Application.
3. Withholding of refund due to pending Revision.
4. Jurisdiction and limitation under Section 35EE of the Central Excise Act.
5. Equitable relief under Article 226 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Refund of Rs. 1,44,10,817/- CENVAT credit:
The petitioners sought a Mandamus directing the 2nd respondent to refund Rs. 1,44,10,817/- as per the order in OIA No.64/2014(G)CE dated 29.10.2014, passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Guntur. The petitioners argued that the refund was unlawfully withheld despite the Commissioner (Appeals) ordering the refund after due enquiry.

2. Filing and validity of the Revision Application:
The respondents contended that a Revision Application was filed on 13.01.2015 with the Joint Secretary (Revision) GOI, Ministry of Finance, New Delhi, and that it was sent to the address mentioned in the preamble of the order dated 29.10.2014. However, the petitioners argued that the Revision was not properly presented as it was sent to the wrong address, and thus, it could not be treated as pending.

3. Withholding of refund due to pending Revision:
The petitioners argued that withholding the refund without any stay of the refund order was illegal. They cited several Circulars issued by the Central Board of Customs, which clarified that no refund should be withheld on the ground of a pending appeal unless a stay order is obtained. The respondents countered that the refund could not be processed due to the pending Revision and the significant revenue involved.

4. Jurisdiction and limitation under Section 35EE of the Central Excise Act:
The petitioners emphasized that the Revision must be filed within 90 days or at least within the extended period of 180 days under Section 35EE(2) of the Act. They argued that the misdirection in filing the Revision to the wrong address did not constitute proper presentation. The respondents maintained that sending the Revision to the address mentioned in the preamble of the order was sufficient compliance. The court noted that the Revision was sent within time to the address specified by the Commissioner (Appeals) and the Committee of Commissioners, though it was later found to be incorrect.

5. Equitable relief under Article 226 of the Constitution of India:
The court exercised its discretionary jurisdiction under Article 226 to strike a balance between the rights of both parties. It directed the 1st respondent to dispose of the pending Revision within two months, emphasizing that the observations on limitation would not influence the decision on the Revision. The court acknowledged the financial impact on the petitioners due to the withholding of the refund and the potential revenue loss to the government.

Conclusion:
The writ petition was disposed of with a direction to the 1st respondent to decide the pending Revision within two months from the date of receipt of the court's order. The court stressed that the observations made regarding limitation should not affect the Revision's merits. The miscellaneous petitions pending in the writ petition were dismissed, and no costs were awarded.