2014 (10) TMI 721 - HC - Central Excise

Maintainability of revision application before the revisional authority - matter related to rebate of duty of excise on goods exported or on excisable material used in the manufacture of goods which are exported - scope of section section 35EE - Held that - A bare perusal of sub-section (1) of section 35EE shows that the Central Government may, on the application of any person aggrieved by any order passed under section 35A where the order is of the nature referred to in first proviso to sub-section (1) of section 35B, annul or modify such order. The argument before the revisional authority was that the Petitioner before us may be person aggrieved but since the order passed is in the nature stipulated by the proviso to sub-section (1) of section 35B, the revision application does not lie. However, the revisional authority while upholding the objection lost sight of sub-section (1a) of section 35EE and that empowers the Commissioner of Central Excise to prefer an application to the Central Government for revision of the order passed under section 35A. Sub-section (1A) of section 35EE has been brought in the statute book with effect from 11th May, 1999. That does not proceed to indicate that a specific order under section 35A could only be revised and not otherwise. Section 35EE(1a) permits invocation of the revisional power of the Central Government, in case the order is passed by the Commissioner (Appeals) and on the satisfaction or opinion of the Commissioner of Central Excise that the said order is not legal or appropriate. It is in these terms that the present application was filed. In these circumstances, the objection could not have been raised as to the maintainability of the revision application. The revision application is maintainable and could not have been dismissed for want of jurisdiction in the Central Government. The impugned order is therefore quashed and set aside and the revision application filed by the Petitioner is restored to the file and the same be decided afresh on merits and in accordance with law. - Matter Restored - Decided in favour of Revenue.

Issues Involved:
1. Maintainability of the revision application under Section 35EE of the Central Excise Act.
2. Jurisdiction of the Central Government to entertain the revision application.
3. Interpretation of Sections 35, 35A, 35B, and 35EE of the Central Excise Act.
4. Impact of subsequent proceedings on the maintainability of the writ petition.

Issue-wise Detailed Analysis:

1. Maintainability of the Revision Application under Section 35EE:

The core issue revolves around whether the revision application filed by the Petitioner (Commissioner of Central Excise, Raigad) under Section 35EE was maintainable. The Joint Secretary, Government of India, rejected the revision application on the grounds that it was not maintainable. The revisional authority concluded that the major issue involved was the determination of the value of excisable goods exported, which did not fall within its jurisdiction. Consequently, the authority held that the issue should be agitated before the proper legal forum, namely, the tribunal, and not the revisional authority.

2. Jurisdiction of the Central Government to Entertain the Revision Application:

The Government held that it had no jurisdiction to pass any order on the revision application concerning the order-in-appeal. The Petitioner argued that this conclusion was erroneous and contradicted the clear language of Section 35EE of the Central Excise Act, 1944. The Petitioner contended that if the order passed by the Commissioner (Appeals) was under Section 35A, then the Commissioner was empowered to direct the appropriate officer to make an application to the Central Government for revision of such order. Thus, the nature of the dispute and contents of the order-in-appeal should not have influenced the conclusion on jurisdiction and maintainability of the revision application.

3. Interpretation of Sections 35, 35A, 35B, and 35EE of the Central Excise Act:

The court examined Sections 35, 35A, 35B, and 35EE in detail. Section 35 allows any person aggrieved by a decision or order passed by a Central Excise Officer, lower in rank than a Commissioner, to appeal to the Commissioner (Appeals). Section 35A sets out the procedure in appeal, while Section 35B provides for appeals to the Appellate Tribunal. Section 35EE confers the power of revision on the Central Government. The court noted that Section 35EE(1A) allows the Commissioner of Central Excise to direct the proper officer to make an application to the Central Government for revision of an order passed under Section 35A, indicating that the revision application was maintainable.

4. Impact of Subsequent Proceedings on the Maintainability of the Writ Petition:

The Respondent argued that the writ petition should be dismissed because the department had taken consequential steps to implement the original order, rendering the petition infructuous. The court acknowledged that subsequent proceedings and orders passed by the Deputy Commissioner on 13th December 2013 might render the controversy academic. However, the court clarified that it had not expressed any opinion on the rival contentions and kept all issues open, including the impact of subsequent proceedings.

Conclusion:

The court concluded that the revision application was maintainable and could not have been dismissed for want of jurisdiction by the Central Government. The impugned order was quashed and set aside, and the revision application filed by the Petitioner was restored for fresh consideration on merits and in accordance with law. The court directed that a fresh order on the revision application be passed after hearing both sides, without being influenced by any observations and conclusions in the earlier order. The petition was disposed of with no order as to costs.

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