9911796707
TMI Blog2014 (10) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - Writ Petition No. 9997 of 2013 - - - Dated:- 26-8-2014 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944, then, the Petitioner - Commissioner before this Court was empowered to direct the appropriate officer to make an application on his behalf to the Central Government for revision of such order. In such circumstances, the nature of dispute and contents of the order-in-appeal should not have influenced the conclusion on jurisdiction and maintainability of the revision application. 5. Mr.Balani appearing on behalf of the respondents on the other hand submits that once the revisional authority has recorded the findings which are to be found in paragraphs 11 to 14 of the order, then, it is not a case for interference in the writ jurisdiction because the view taken is in accordance with law. Further, from the developments which are not placed on record by the Petitioner, the writ jurisdiction is invoked in relation to the impugned order but without informing the Court that in furtherance of the order-in-original and order in appeal, the department has taken consequential steps and to implement the original order. Once the order has been implemented then the present petition is rendered infructuous. The issue raised is purely academic. In that regard our attention is invi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. (5) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed. (6) On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority, the Chief Commissioner of Central Excise and theCommissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. A bare perusal of the above sections would indicate that any person aggrieved by any decision or order by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may file an appeal to the Commissioner of Central Excise (Appeals) within 60 days from the date of communication to him of such decision or order. Thereafter, section 35A sets out the procedure in appeal. The further provision of section 35B, no doubt confers a right in any person aggrieved by the orders mentioned in the said section to prefer an appeal to the Appellate Tribunal and one of the orders against which the appeal can be preferred is the order passed by the Commissioner (Appeals) under section 35A. However, what we note from section 35EE is that the same confers a power of revision in the Central Government. That reads as under : Section 35EE Revision by Central Government. (1) 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 the first proviso to sub-section (1) of section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in section 11A. 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. 7. The revision application is held to be not maintainable. 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 eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
