9911796707
TMI Blog2015 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... above exercise in its entirety was necessary. It was incumbent upon the Revisional Authority to render complete findings and conclusion and not leave the matter half way and by some cryptic observation and reasoning. Thus, Revisional order passed by Department of Revenue quashed and set aside – Merely because such stand was taken by Petitioners, Revisional Authority should not once again render same findings but deal with all these issues and contentions based thereon – Authority to decide whether order passed by Commissioner (Appeals) and specifically referring to Rule 17 in above background, was legal or proper – Petition disposed of. - Writ Petition No. 8588 of 2013 - - - Dated:- 15-12-2014 - S.C. Dharmadhikari and A.A. Sayed, JJ. Shri V. Sridharan, Senior Counsel with Prakash Shah, Jas Sanghavi i/b. PDS Legal, for the Petitioner. Shri Pradeep S. Jetly with Jitendra B. Mishra, for the Respondent. ORDER The Respondents waive service. By consent of the parties, Rule is made returnable forthwith. Heard finally. 2. This Writ Petition under Article 226 of the Constitution of India challenges the order passed by the Revisional Authority, namely, Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods imported by the Petitioners under Rule 3 of the Drawback Rules, they had the option to go for determination of the amount or rate of drawback under Rule 7. That could have been done provided the rate or amount determined under Rule 3 was less than four-fifth of the duties or taxes paid on the raw materials or components or input services used in the production or manufacture of goods. 7. We are not concerned with the observations of the Revisional Authority in the impugned order. Suffice it to hold that the Revenue initiated proceedings for recovery of the excess drawback paid under Rule 16 of the Drawback Rules by issuance of three show cause notices dated 4th October, 2010, 25th October, 2010 and 3rd December, 2010. These show cause notices were adjudicated by a common order dated 21st March, 2011 of the Commissioner of Customs, Pune. 8. The Petitioners had filed an Appeal against the order of the Commissioner to the Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai. This Appeal was decided on 12th April, 2012. From the order of the Revisional Authority, it appears that the case or matter has been remanded for reconsideration of the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his agent record reasons in writing and exempt the exporter or agent from the provisions of such Rule and allow drawback in respect of such goods. Mr. Sridharan submits that there was nothing which can prohibit the Central Government and in this case from exercising this power to relax. The power to relax was invoked by the Petitioners for bonafide reasons. They could have made a supplementary claim only because of the stand which was taken by the authorities and in pursuance of the show cause notices and the order made thereon. Thus, if the stand is changed by the Assessee and on account of interpretation placed on certain Rules, then, such subsequent change can be a sufficient cause for the delay. The subsequent events as well enable the exercise of the powers to relax because the parties like the Petitioners have acted bonafide. The Petitioner s case may not fall strictly in the Rule 15 but the power under Rule 17 is not circumscribed and in that regard Mr. Sridharan has placed reliance upon a passage from the well known work, namely. Administrative Law by Sir William Wade Eighth Edition. 10. On the other hand, Mr. Jetly appearing on behalf of the Respondents supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), the Customs, Central Excise Duties and Service Tax, Goa, holds that this is a sufficient and bonafide reason for filing supplementary claim in terms of Rule 17 of the Drawback Rules read with Circular No. 82/1998-Customs dated 29th October, 1998. He, therefore, was of the view that the Petitioners claim cannot be treated as time barred. He directed the Assistant Commissioner to admit the claim and to process the same as per law. It is this direction of the Commissioner (Appeals) which was challenged in the revisional jurisdiction of the Central Government. In Paras 5.2 and 5.3 of the impugned order, the Revisional Authority specifically notes the argument of the Petitioners and canvassed in the alternative and without prejudice. However, what we find is that in Para 8 of the impugned order, the Revisional Authority refers to the adjudication made by the show cause notices and terms that it was a recovery proceeding to recover drawback granted erroneously under Rule 6(1)(a) of the Drawback Rules. It holds that the supplementary claims are not covered by the show cause notices. It, then, proceeds to hold that the Order-in-Original is not related to the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128-A is not legal or proper. He can direct the proper officer to make an application on his behalf to the Central Government for revision of such order. If the legality or propriety of the order passed by the Commissioner (Appeals) was under consideration of the Central Government, then, in the given facts and circumstances and peculiar to the Petitioners case, it was equally open for the Revisional Authority to consider and decide the alternate and without prejudice contentions. If the power to relax is conferred in the Central Government, then, whether that power can be invoked by the Petitioners during the course of the present Revisional Proceedings was equally a vital issue. In the given facts and circumstances and to curtail further legal proceedings and in the larger public interest and equally interest of justice, the Central Government could have gone into this contention and decided this aspect as well. We are of the opinion that by the reasons assigned in para 10 of the impugned order, the Revisional Authority has failed to decide these contentions and render the findings on them. This failure vitiates the exercise of the revisional powers by the Central Government. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
