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TMI Blog2016 (1) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... te order by exercising jurisdiction under Article 226 of the Constitution of India. To avoid loss to any one of the parties to this Writ Petition, we find that it is a fit case to direct the 1st respondent to dispose of the Appeal pending before them, as expeditiously as possible, in any event not later than two months from the date of receipt of a copy of this order, by exercising an equitable jurisdiction conferred on this Court under Article 226 of the Constitution. Writ Petition disposed of. - WRIT PETITION No.28868 OF 2015 - - - Dated:- 7-1-2016 - SRI RAMESH RANGANATHAN AND SRI M. SATYANARAYANA MURTHY, JJ For the Petitioner : UDAYA SRI For the Respondent : BATHULA RAJKIRAN(SC FOREXCISE CUSTOMS) ORDER: (PER HON BLE SRI JUSTICE M. SATYANARAYANA MURTHY) This writ petition, under Article 226 of the Constitution of India, is filed by the petitioners to issue an order or direction more particularly one in the nature of Mandamus directing the 2nd respondent to refund an amount of ₹ 1,44,10,817/- to the petitioners and implement the order in OIA No.64/2014(G)CE, dated 29.10.2014, passed by the Commissioner (Appeals), Customs, Central Excise and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that no Revision Application or any other Petition was received in the office of 1st respondent from the office of the Guntur, challenging the order in OIA No.64/2014(G)CE before the 1st respondent. Withholding huge amount of ₹ 1,44,10,817/- without any reason is illegal and none of the provisions of the Central Excise Act, 1944 (for short, the Act ) permits the 2nd respondent to withhold such huge amount without preferring any Revision and, even if any Appeal is preferred, in the absence of any stay of refund, the 2nd respondent is not entitled to withhold the same and finally prayed to allow the Writ Petition and pass the aforesaid reliefs. The respondents filed counter denying the material allegations inter-alia contending that the Revision Application in C.No.V/02/01/2015-Trib dated 13.01.2015 has been filed in the office of Joint Secretary (Revision) GOI, Ministry of Finance and Company Affairs, Department of Revenue, New Delhi and the Revision was sent to the office address mentioned in the preamble of the order attached to OIA No.64/2014(G) CE dated 29.10.2014 passed by the Commissioner vide letter in C.No.V/02/158/2014-Reviews dated 05.01.2015 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount is not due to any other reason and finally prayed to dismiss the Writ Petition. During course of hearing, Sri G. Vidyasagar, learned senior counsel, appearing on behalf of the petitioners, contended that the Revision is required to be filed within 90 days or at least within the extended period of 180 days before the 1st respondent and sending of Revision Application to the wrong address does not amount to proper presentation; therefore, the Revision cannot be treated as pending before competent authority and drawn the attention of this Court to Section 35EE(2) of the Central Excise Act, which contemplates that an application under sub-section (1) shall be made within 3 months from the date of communication of the order against which an application is being made. However, the proviso thereby permits the concerned authority to condone delay of 3 months thereafter. Learned senior counsel also drawn the attention of this Court to several Circulars issued by the Central Board of Customs dated 22.02.2001 and 26.06.2014 to contend that mere filing of Revision by the 2 nd ,respondent would not debar the petitioners to seek refund of the CENVAT credit of ₹ 1,44,10,817/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Company Affairs Department of Revenue, Jeevan Deep Building, Sansad Marg, New Delhi. In the order dated 29.10.2014 passed by the Commissioner (Appeals) and in the order dated 05.11.2015 passed by the Committee of Commissioners there was a specific direction to the 2nd respondent to file a Revision only to the address mentioned in the preamble of the order dated 29.10.2014. In view of the direction of the Committee of Commissioners, the 2nd respondent sent a Revision along with a covering letter dated 13.01.2015 to the Joint Secretary, Government of India, Ministry of Finance and Company Affairs, Department of Revenue, Jeeven Deep Building, Sansad Marg, New Delhi annexing the required copies of orders etc., raising several contentions. Later, filed a miscellaneous application dated 03.02.2015 for early hearing of the Revision and later addressed letters dated 18.02.2015 and 19.02.2015 seeking confirmation of the receipt of the Revision. Finally, a letter dated 26.10.2015 was addressed by the Additional Commissioner to the Joint Secretary (Revision Jurisdiction) Ministry of Finance, 14 Hudco Vishal Buildings, Bhikhaji Cama Palace, New Delhi, referring Writ Petition No.28868 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the order is sufficient compliance of the direction and sending of Revision to the wrong address is not a ground to reject the Revision in limini. In support of his contentions, the 2nd respondent has drawn the attention of this Court to the decision of Kerala High Court in Ruby Rubber Works1, wherein the Kerala High Court held that if the Appeal had not been wrongly addressed, it would have in all probability reached the appellate authority well within time. Therefore, the Appeal is liable to be taken back on file by the appellate authority concerned and disposed of on merits after giving an opportunity of being heard to the petitioner even though received late in his office. In the facts of the decision cited supra, the Revision Application was filed before the 3rd respondent in view of furnishing of wrong address. The letter therein was, unfortunately for the petitioner, addressed through inadvertence to the Appellate Collector of Customs, Cochin. It is stated by the petitioner therein that it was transmitted by that office to the correct address of the 2nd respondent at Madras. Even in those circumstances, the Kerala High Court held that filing of a Revision is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Constitution is discretionary and such discretion must be exercised judiciously, taking into consideration all the attending circumstances. In the present facts of the case, as directed by the Appellate Commissioner and Committee of Commissioners, the Revision was sent to the Joint Secretary, Government of India, Ministry of Finance and Company Affairs, Department of Revenue, Jeevan Deep Building, Sansad Marg, New Delhi but the office address of the Joint Secretary (Revision Jurisdiction) Ministry of Finance, 14 Hudco Vishal Buildings, Bhikhaji Cama Palace, New Delhi was not repeated in the address given in the orders referred above. Curiously, the grounds of Revision and other documents sent along with the Revision were neither returned nor forwarded to the correct address but only after consistent consultation by letter correspondence, the Department could know shifting of the office even prior to sending the Revision along with the documents to the address given in the orders passed by the Appellate Commissioner and Committee of Commissioners directing the 2nd respondent to file a Revision; till then, the respondents are not aware about the change in the address of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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