2018 (5) TMI 1057 - HC - Central Excise

Rebate claim - revision applications under Section 35EE - time limitation - Held that - respondent no. 2 has proceeded to apply the provisions of sub-Section 3 of Section 35EE of the Act which contemplates and requires that a revision application ought to have been accompanied by a fees of ₹ 1000/- when the amount of duty, interest demanded, fine or penalty levied by any of the authority in the case to which the application relates is more than ₹ 1,00,000/-. In the instant case, it is not a case where the amount of duty and interest is demanded or fine and penalty is levied as such in the instant case the petitioner has claimed the rebate of excise duty. There is no dispute that the requirement of payment of fee before or at the time of filing of revision application is mandatory but in the instant case, the appeals were filed before the respondent no. 2 on 13.05.2014 against the order of the Commissioner (Appeals) dated 09.12.2013, the deficiency of the amount has been cleared as soon as the petitioner has received the notice dated 02.06.2014. The order impugned has been passed by the respondent no. 2 after a gap of more than about three and half years from the date of filing of the appeal and while passing the said order the respondent no. 2 has not looked into the contends of the notice dated 02.06.2014 which clearly stipulates a marginal period allowed to the petitioner to pay the short fee, for each of the revision applications @ ₹ 800/- within a period of 15 days. Impugned order do not sustain - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Validity of the revisional order dated 04.01.2018.
2. Requirement and compliance of the fee for filing revision applications under Section 35EE of the Central Excise Act, 1944.
3. Timeliness of the fee payment for revision applications.
4. Procedural fairness in the handling of the petitioner’s revision applications.

Detailed Analysis:

1. Validity of the Revisional Order Dated 04.01.2018:
The petitioner sought to quash the revisional order dated 04.01.2018, which was served on 18.01.2018, passed by the Additional Secretary, Government of India, Ministry of Finance (Department of Revenue). The petitioner contended that the rejection of their revision applications on the grounds of laches was unjustified. The court noted that the impugned order was passed after a delay of more than three and a half years from the date of filing the appeal and failed to consider the notice dated 02.06.2014, which allowed a marginal period for the petitioner to pay the short fee.

2. Requirement and Compliance of the Fee for Filing Revision Applications Under Section 35EE:
The petitioner filed four revision applications under Section 35EE against the order of the Commissioner (Appeals) dated 09.12.2013. The petitioner mistakenly deposited a fee of ?200/- each instead of the required ?1000/-. The respondent's office issued a notice on 02.06.2014, acknowledging the receipt of the applications but pointing out the shortfall in the fee. The petitioner subsequently deposited the additional fee of ?800/- for each application on 19.06.2014.

3. Timeliness of the Fee Payment for Revision Applications:
The court examined the timeline of the fee payment. The revision applications were filed on 13.05.2014, and the deficiency in the fee was cleared on 19.06.2014, within 16 days of receiving the notice dated 02.06.2014. The respondent no. 2 had allowed a grace period of 15 days to fulfill the fee requirement. The court presumed that the notice was received by the petitioner on 03.06.2014 or 04.06.2014, making the fee payment on 19.06.2014 marginally late by one or two days. The court found this delay insignificant and noted that the respondent no. 2 failed to consider the grace period allowed in the notice.

4. Procedural Fairness in the Handling of the Petitioner’s Revision Applications:
The court highlighted the procedural unfairness in the handling of the petitioner’s revision applications. The respondent no. 2 rejected the applications solely on the ground of late fee payment without considering the grace period mentioned in the notice dated 02.06.2014. The court also noted that the respondent no. 2 took an excessive amount of time (more than three and a half years) to pass the impugned order and did not provide a valid justification for the delay. Additionally, the court pointed out that the personal hearing was held on 11.12.2017, but the impugned order was passed only on 04.01.2018, which was after more than three weeks from the date of hearing.

Conclusion:
The court set aside the impugned orders passed by the respondent no. 2 and directed the respondent to hear all four revision applications on merits and decide them in accordance with the law. The writ petition was allowed, with no order as to costs.

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