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TMI Blog2013 (8) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 12226/2011 pertains to the bar of limitation prescribed by Section 35EE of the Act, for which the petitioner's revision application thereunder, has already been rejected, as belated. The issues, in substance, being identical, the petitions were heard analogously and the present adjudication would answer the same. 2. We have heard Mr. M.P. Devnath with Mr. Sameer Jain, learned counsel for the petitioners and Mr. Anil Mehta & Mr. Ajay Shukla for the respondents. 3. In the outlined backdrop of the instant scrutiny, the facts in bare essential, would only be scripted as the determination of the debate involved, would logically eventuate in the resultant legal consequences, even in absence of specific references to all the impugned orders involved. 4. The petitioner has introduced itself to be a manufacturer of Menthol Powder, Menthol Crystal, D.M.O. and Menthol Oil falling under Headings No. 2906 11 00, 3003 90 21 and 3301 25 90 of the First Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as "CETA") and engaged in exporting them without payment of duty under Rule 19 of the Rules. Between October, 2005 to April, 2006, it accordingly, cleared six consignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities laid for export, as referred to in the AREs, and those mentioned in the other documents. According to the Revenue, the plea of the petitioner/assessee that the incompatibility in description was a matter of mistake, was not tenable as thereby, the central excise tariff headings did differ. It maintained in the notice that the goods which were sought to be exported were different from those cleared from the petitioner's factory covered by ARE-1s and that, as it admittedly did not have a drug licence to manufacture those mentioned in their Bill of Lading/Shipping Bills, it was apparent that those had not been manufactured by it, and thus it, under the guise of export, diverted the same, valued Rs. 4,27,29,663/-, in the local market with an intention to evade central excise duty. The petitioner/assessee was also required to produce all evidence, documentary or otherwise, at the time of submission of its explanation in support of its defence. 5. The petitioner, on 14-12-2006, submitted its reply to the show cause notice maintaining that it had actually exported the goods covered by ARE-1s, after the acceptance of proof thereof by the jurisdictional Assistant Commissioner, Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and preferred a revision thereunder. As admittedly, this revision application was at the time of institution was not only barred by time in terms of sub-section (2) of Section 35EE, but also beyond the period extendable by the revisional authority under the proviso thereto, interference was declined on the ground of bar of limitation. Contending that as the petitioner had been pursuing its relief bona fide before the wrong forum i.e. the Tribunal, the learned revisional authority ought to have adjudicated its application under Section 35EE on merits, the petitioner has sought the remedial intervention of this Court. 7. The respondents have in their reply reiterated their stand in the show cause notice. According to them, not only such mismatch, in the description of goods in the AREs and other documents, in the six consignments of Menthol Crystal had been detected, it is also writ large on the face of the contemporaneous documents, that such anomalies have been noticed in other instances covered by ARE-1s No. 29 dated 7-3-2006, 30 dated 18-3-2006, 01 dated 22-4-2006 and 03 dated 28-4-2006 of the petitioner's goods cleared as being organic chemicals of Chapter-29, whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to permit export of excisable goods without payment of duty from the factory of a producer or a manufacturer thereof, subject to the conditions, safeguards and procedure to be specified by the Board, the petitioner's consignments having conformed to such prescriptions and been exported, after exhaustion of all the procedural requisites, the withdrawal of the acceptance of the proof of export and the proposed action of realization of the excise duty with interest and penalty being patently illegal and in contravention of the letter and spirit of the Act and the Rules ought to be adjudged null and void. As the petitioner's consignments had been exported after being cleared by the customs authorities, the purported difference in the description thereof as depicted in the AREs and the other documents pertaining thereto, notwithstanding, being satisfied that the said variations were neither material nor did have any bearing on the identification of the goods, the respondents were estopped in law from referring to the impugned actions, he urged. 9. According to Mr. Devnath, in absence of any evidence of diversion of the petitioner's consignments to the domestic market, and in the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue relied on the decisions of the Apex Court in Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. & Anr. - (2009) 223 CTR (SC) 225 = 2009 (236) E.L.T. 417 (S.C.). 12. The pleaded facts along with the documents on record and the competing arguments have received our due consideration. Before adverting to the dissensus bearing on the merits, apt it would be to deal with the aspect of delay for which the petitioner's revision under Section 35EE had been rejected. 13. Indubitably, by the time it filed its revision petition under Section 35EE, not only the period of limitation prescribed therefor had expired but also the term of relaxation grantable had lapsed. The power of the High Court to condone the delay in presentation of reference application under the unamended Section 35H(1) of the Act beyond the prescribed time by applying Section 5 of the Limitation Act, 1963 was dilated upon in Hongo India (P) Ltd. (supra). Their Lordships of the Supreme Court, on an elaborate survey of the provisions of the Act, with particular reference to Sections 35, 35B, 35EE, 35G and 35H, in authoritative terms, concluded that the scheme thereof predicated complete exclusion of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al background referring to Section 34(1) and its earlier decision in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors - (2008) 7 SCC 169 held that in absence of any exclusion of Section 14 of the Limitation Act, 1963, the same would apply to the application under Section 34 of the Act. Taking that view, it was held that the application filed by the appellant before the district court was in time. 15. In Steel Authority of India Limited (supra), as the text of that decision would reveal, the assessee was left at liberty to avail the remedy under Section 35G of the Act and to seek the benefit of Section 14 of the Limitation Act, 1963 in accordance with law. So far as the aspect of the limitation is concerned, this decision as such therefore does not enunciate a legal proposition of application of Section 14 of the Limitation Act, 1963 in the eventualities contemplated by the various provisions of the Act and, in particular, Sections 35, 35B, 35EE, 35G and 35H of the Act. Not only, to reiterate, in Hongo India (P) Ltd. (supra), the scheme of the Act was distinguished from that of the Act, 1996, while examining the applicability of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to the letter and spirit of this provision of the Rules, but would also result in its undue enrichment at the cost of public revenue. Actual export of the consignments of the goods not manufactured by the petitioner per se would not entitle it to the benefit of Rule 19. The identification of the goods, thus, claimed to have been exported is of definitive significance and can by no means be compromised with, notwithstanding the fact that initially, the acceptance of the proof of export had 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. Though the respondents have not refuted the petitioner's plea of its goods having been subjected to such scrutiny, its explanation that the misdescription was a result of some inadvertent mistake, lacks in persuasion, more particularly, in view of its knowledge of not being the manufacturer of Menthol Crystal/Powder with pharmacopoeia standards as entered in its documents, namely Bill of Lading and Shipping Bills and thus, not being entitled to avail the benefit of central excise tax exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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