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TMI Blog2013 (3) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... d been issued by the authorities and the same had been cleared for export after examination of the same at the place of export as required by CBEC guidelines to ascertain the identity and the quantity thereof. The view taken by the Revenue, having regard to the entire gamut of the facts involved, does not appear to be wholly implausible and absurd so as to be discarded as preposterous. Thus its plea of similar antecedents of the petitioner also cannot be lightly ignored. The relief claimed by the petitioner is statutory in nature and would be logically available to it on strict compliance of the prescriptions in connection therewith. The mere contingency that at some earlier point of time, the acceptance of the proof of export had been issued by the concerned excise authorities, would not entitle it to the benefit of Rule 19, in the singular facts and circumstances of the case. No final decision, as yet, has been taken by the excise authorities on the reply/explanation filed by it to the show cause notice(s). - the respondents would take an appropriate decision in accordance with law in the said proceedings without being influenced by the above observation after affording due oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner, Central Excise, Division-II, Jaipur. It also submitted the proof of export before the said authority for acceptance under the above provision of the Rules, whereafter the said authority vide orders/letters No.V(Tech) CE-II/SCN/63/05/1189-90 dated 31.1.2006, V(Tech)CE-II/POE/Kaizen/06/05 dated 20.06.2006 and V(Tech)POE/14/2006/2731-32 dated 22.8.2006, accepted the same. It was thereafter that, by letter No.V(Tech)Adj./55/2006/4462 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 (hereinafter referred to as 'the Board'), 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 under Section 11A of the Act, together with interest contemplated under Section 11AB thereof. It was also required to reply as to why penalty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the admission of the Revenue in the show cause notice of the actual export of the consignments involved, the petitioner/assessee maintained that it manufactures Menthol of various grades, some whereof, conformed to the specifications BP/USP and insisted that as the consignments had been cleared for export by the customs authorities on due examination thereof there, in fact, was no causative variation in the description of goods, warranting the action proposed. It contended that in absence of any tangible evidence of diversion of the goods for domestic purposes, the inference to that effect was unfounded. It referred, in particular, to Para 7.3 and 7.4 of Chapter-8 of the CBEC's Excise Manual of Supplementary Instructions, delineating the procedure for examination of the goods by the customs authority to establish the identity and quantify thereof, for export and the consequential incentives therefor, as contemplated under the Act and the Rules. It thus contended that the consignments having been cleared for export on due verification thereof by the customs authorities so authorized to undertake that task, the accusation of evasion of duty by it, was untenable. The petitioner's/ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder, is an absolute essentiality, it has asserted the acceptance of proof of export had been validly withdrawn. It has been pleaded as well that the petitioner's contention of inadvertent mistake in the matter of description of his consignments, was wholly unconvincing. The respondents pleaded that as admittedly the petitioner did not have a drug licence, it could not have manufactured Menthol Powder/Crystal with pharmacopoeia standards as sought to be represented in its Bill of Lading/Shipping Bills etc., contrary to its AREs, they endorsed the issuance of show cause notice and the action proposed thereby. They have dismissed the petitioner's plea of litigating bona fide in a wrong forum as only an excuse even otherwise untenable in law and thus, insisted the same had been rightly rejected by the revisional authority. Mr.M.V.Devinath vis-a-vis D.B.Civil Writ Petition No.12226/2011 has insistently argued that as the petitioner at all relevant points of time had been pursuing the appeal before a wrong forum, the revisional authority under Section 35EE ought to have condoned the delay by accepting its plea of litigating bona fide in a wrong forum. Pleading that the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of export and the proceedings initiated by the show cause notice dated 27.10.2006 ought to be declared null and void and the impugned decisions of the appellate/revisional authority under the Act be set aside. To reinforce his contentions, reliance was placed on the decisions of the Apex Court in Steel Authority of India Ltd. Vs. Collector of Central Excise, 1996 (82) E.L.T.172 (S.C.); Chandi Prasad & Ors. Vs. Jagdish Prasad & Ors., (2004) 8 SCC 724; Coal India Ltd.& Anr. Vs. Ujjal Transport & Ors., (2011) 1 SCC 117 and of the Bombay High Court in Global Traders Vs. Union of India, 2004(174) ELT 434; Vimal Nath Vs. Union of India, 2008(232) E.L.T. 592 (Bom.). In emphatic controversion of the above, Mr.Anil Mehta and Mr.Ajay Shukla have insisted that not only plea of bona fide litigating in a wrong forum is perverse and untenable on the face of it, the petitioner having preferred revision petition in time, in the other cases in hand, its endeavour to pass off the goods covered by the AREs to be manufactured by it and exported as contemplated under Rule 19 is clearly belied by the coeval records, including its own documents, namely Bill of Lading, Shipping Bills etc., pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to Section 29 of the Limitation Act, 1963, propounded that even in a case where such special law did not exclude the provisions of Sections 4 to 24 of that enactment by an express reference, it was nonetheless open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject matter and scheme of the special law, did exclude their operation. It was held that the applicability of the provisions of the Limitation Act, therefore, was not to be judged in terms thereof, but by the provisions of the Central Excise Act, which suggest that the time limit prescribed thereunder is absolute and unextendable by a court under Section 5 of the Limitation Act. That it is the duty of the court to respect the legislative intent and that liberal interpretation contrary thereto ought not be granted, was also underlined. In Coal India Limited (supra), the appellants being aggrieved by the award made under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act, 1996') filed appeal under Section 34 thereof before the territorial High Court, though an application ought to have been made before the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other accompanying instances, the petitioner had rightly identified the forum, in the overall factual backdrop cannot also be lightly discarded. However, the above rejection of the petitioner's revision application under Section 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. In the above premise, having regard to the identicalness of the issues seeking adjudication of this Court in all the petitions, we are not inclined to reject D.B.Civil Writ Petition No.12226/2011 only on this count and instead, propose to examine the same on merits as well. The pleaded facts relating to the petitioner's consignments unmistakably demonstrate that the petitioner's claim for exemption from central excise duty is traceable to Rule 19 of the Rules, whereunder any excisable good may be exported without payment of duty from the factory of a producer or a manufacturer or the warehouse or any other premises, as may be approved by the Commissioner, subject to such conditions, safeguards and procedure, as may be prescribed by notification by the Board. That the mismatch in the descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons thereof and no deviation is permissible. The proposed action of the respondents authorities on the ground of misdescription of the goods by the petitioner, on a cumulative consideration of all above, in our estimate, cannot be construed to be untenable. The view taken by the Revenue, having regard to the entire gamut of the facts involved, does not appear to be wholly implausible and absurd so as to be discarded as preposterous. Thus its plea of similar antecedents of the petitioner also cannot be lightly ignored. The relief claimed by the petitioner is statutory in nature and would be logically available to it on strict compliance of the prescriptions in connection therewith. The mere contingency that at some earlier point of time, the acceptance of the proof of export had been issued by the concerned excise authorities, would not entitle it to the benefit of Rule 19, in the singular facts and circumstances of the case. The petitioner did initiate the impugnments against the withdrawal of the acceptance of the proof of export and the proceedings stemming from the show cause notice leading to institution of the instant proceedings. No final decision, as yet, has been taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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