1996 (2) TMI 154 - HC - Central Excise

Issues Involved:
1. Eligibility to bring back goods under Rule 173H(2)
2. Time-barred revision application under Section 35EE(1) of the Central Excises and Salt Act
3. Powers of review under Section 35EE of the Act
4. Maintainability of the revision application
5. Question of law vs. question of facts in revision

Detailed Analysis:

1. Eligibility to Bring Back Goods under Rule 173H(2):
The petitioner, a manufacturer of dyes and chemicals, had cleared 2000 kgs of Cresol Chloride to M/s. Colour Chem, Thane, which later returned the goods to the petitioner. The petitioner sought permission for re-entry and reprocessing of these goods under Rule 173H, which was granted. However, at the time of export, the petitioner did not pay duty on the 2000 kgs received from M/s. Colour Chem, leading to a rebate claim. The 2nd respondent rejected the rebate claim on the grounds that the goods were not in their original packed condition, as required under Notification No. 197/62.

2. Time-Barred Revision Application under Section 35EE(1) of the Central Excises and Salt Act:
The petitioner contended that the revision application filed by the 3rd respondent under Section 35EE(1) was time-barred. The Collector of Central Excise (Appeals) had passed an order on 16-5-1994, received by the 3rd respondent on 20-5-1994. The three-month period for filing a revision application expired on 20-8-1994. However, the revision application was filed on 20-9-1994 and received on 10-10-1994, making it delayed by one month and 20 days without any application for condonation of delay.

3. Powers of Review under Section 35EE of the Act:
Section 35EE allows the Central Government to annul or modify orders passed under Section 35A. Sub-section (2) mandates that applications must be made within three months, extendable by another three months if sufficient cause is shown. The petitioner argued that the 1st respondent exceeded the powers of revision by ignoring the time limit and delving into questions of fact, which is beyond the scope of Section 35EE.

4. Maintainability of the Revision Application:
The petitioner argued that the 1st respondent issued a show cause notice based on a time-barred revision application. The revision application was made under Section 35EE(1) and not suo motu under Section 35EE(4). The 1st respondent's decision to entertain the revision without addressing the delay was deemed unsatisfactory by the petitioner.

5. Question of Law vs. Question of Facts in Revision:
The petitioner contended that the revision should only address questions of law, not facts. The 1st respondent failed to provide reasons for differing from the appellate authority's view, which had previously allowed the petitioner's appeal.

Conclusion:
The High Court set aside the impugned order and remitted the matter to the 1st respondent for fresh consideration regarding the maintainability of the revision application and its merits. The 1st respondent was directed to return the revision papers to the 3rd respondent, allowing them to refile with an application under the Proviso to Section 35EE(2). The 1st respondent must then give the petitioner an opportunity to object to the delay and decide the matter after providing sufficient opportunity for both parties to be heard. The writ petition was allowed without costs.

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