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TMI Blog2007 (11) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... bate amount to the tune of Rs. 6,84,590/-. The Revenue, by their order dated 30th Oct., 2003, rejected such prayer. The prayer of the respondent having been allowed by learned Single Judge, the present appeal has been preferred. 2. The case of the respondent (hereinafter referred to as the 'Company') before the writ court was that the company cleared 2000 Kgs., of Cresol Chloride on 29th Dec., 1990, on payment of duty of Rs. 5,35,500/- in GPI No. 20 to one M/s. Colour Chem Ltd. The said M/s. Colour Chem Ltd., took credit in their RG 23-A Part II account as an input and resold the entire quantity on 11th Dec., 1992 to the company by paying in terms with Rule 57F(1)(ii) of the Central Excise Rules. In this background, the company requested the Assistant Commissioner, Pondicherry Division for re-entry of Cresol Chloride for reprocessing the same. It filed necessary D3 intimation under Rule 173-H, whereinafter the Assistant Commissioner, vide communication dated 30th Dec, 1992, granted permission under Rule 173-H for re-entry and reprocessing. The company exported the material with additional quantity of 5000 Kgs., of Cresol Chloride under AR4 No. 30. Though duty was paid with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ug., 1995, allowed the revision application and set aside the appellate order. The claim of the company for refund was disallowed. The company, thereafter, moved before this Court in a writ petition - W.P. No. 16769/95. The case was heard by this Court, but without deciding the claim and counter-claim on merits, vide judgment dated 23rd Feb, 1996 [1996 (88) E.L.T. 318 (Mad.)], this Court set aside the order and remitted the matter to the revisional authority with the following observations :- "19. This apart, it is also contended that the revision can only be on question of law and not on questions of fact. No reasons have been given by the first respondent to differ from the appellate authority's view. Therefore, I set aside the order impugned in toto and remit the matter to the 1st respondent for fresh consideration on the question of maintainability of the revision application and also on merits. The first respondent shall return the papers filed in the form of revision to the 3rd respondent with liberty to represent the same with an application under the Proviso to Section 35EE(2) of the Act. On receipt of such application, the 1st respondent shall give an opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) and the authority could allow at best, if it would have been preferred within further period of three months, i.e., total 180 days. While the Revenue took plea that the revision application was re-presented in view of the order of the High Court, the company took plea that it was a fresh revision application. According to the company, earlier revision application, which was returned, was not re-presented. It was also submitted on behalf of the company that a fresh show cause notice having been issued on 12th June, 1996, it cannot be presumed that the earlier revision application was represented. Thereafter, the revision application having been allowed by Order No. 147/96, dated 4th Nov., 1996, the company preferred the writ petition in question (W.P. No. 2368/97). Again the same ground was taken that the revision application so filed was a fresh revision application preferred after delay of more than 200 days and, thereby, it was barred by limitation. 7. At this stage, it is pertinent to mention that the revisional authority, while passing the order, unfortunately made certain comment with regard to the earlier judgment of the High Court. Learned Single Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent having failed to establish that he had not passed on the burden of duty to other persons. Reliance was placed on the following observation made by the Supreme Court in the case of Mafatlal Industries Ltd., (supra) :- "(x).......So far as the jurisdiction of the High Courts under Article 226 of the Constitution - or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transfress them." 11. From Section 35EE, it will be evident that the application under sub-section (1) has to be made in such form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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