TMI Blog2010 (12) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... Antani, JJ. REPRESENTED BY :Shri Uday Joshi for M/s. Trivedi Gupta, for the Petitioner. Shri Darshan M. Parikh, Advocate, for the Respondent. [Order per : H.B. Antani, J. (Oral)]. The present petition under Article 226 of the Constitution of India as well as under provisions of the Central Excise Act, 1944 and the rules made thereunder is filed by the petitioner-Company, with the following prayers : (A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing impugned Order No. 857/10-CX., dated 18-5-2010 passed by the Joint Secretary to the Government of India, Ministry of Finance; (B) Your Lordships may be pleased to issue an appropriate writ, order or direction holding and declaring that the claim of rebate filed by the petitioner company were required to be entertained by respondent No. 2. 2. Short facts of the present petition are as under : The petitioner-Company is engaged in the activity of manufacture and export of cold roll stainless steel articles falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. In exercise of powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission which ultimately culminated in an order No. 30/Cus/2006 dated 4-4-2006. Thereafter, on 28-7-2006, the petitioner received back ARE-1 and ARE-2 and other original documents from the Directorate of Revenue Intelligence. After receipt of the aforesaid documents, the petitioner filed the aforesaid rebate claims. 5. In connection with the aforesaid rebate claims filed by the petitioner- Company, a show cause notice came to be issued as to why the rebate claims should not be rejected as time barred inasmuch as the rebate claim is to be submitted within a period of one year from the date of export which was not done in the present cases. The petitioner replied to the show cause notice. Ultimately, respondent No. 2 passed an Order-in-Original being No. MP/700 to 707/Reb/06-07 dated 23-3-2007 rejecting the aforesaid rebate claims filed by the petitioner under Section 11B of the Act as being time-barred. 6. The petitioner challenged the aforesaid order before the Commissioner of Central Excise (Appeals) on the ground that the original documents were seized by the Directorate of Intelligence on 6/7-10-2004 which were returned by them only on 28-7-2006 and the rebate claims were fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revisional Authority has committed an error in holding against the petitioner-Company. Learned advocate submitted that the Revisional Authority has also not appreciated the judgments referred to at the time of hearing in their true perspective while rejecting the claim of the petitioner. The Revisional Authority also committed an error in not appreciating the fact that the procedure prescribed by subsidiary legislation is to be in the aid of justice and the procedure of requirements cannot be so read as to defeat just cause of the petitioner. Learned advocate further submitted that even the order passed by the Revisional Authority is a non-speaking order inasmuch as it does not give any findings on the judgment rendered by this Court in the case of Cosmonaut Chemicals v. Union of India reported in 2009 (233) E.L.T. 46 (Guj). Thus, the learned advocate submitted that the petitioner has made out a case for the grant of relief as prayed for, and the prayers as set out in the petition are required to be granted and the impugned order bearing No. 857/10-CX., dated 18-5-2010 passed by the Joint Secretary to the Government of India, Ministry of Finance be quashed and set aside, and ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the relevant law and have also perused the Order-in-Original being No. MP/700 to 707/Reb/06-07 dated 23-3-2007, Order-in-Appeal No. 77/2007 dated 1-8-2007 passed by the Commissioner (Appeals), Order-in-Original being No. MP/447/Reb/08-09 dated 23-7-2008 and the order passed by the Revisional Authority dated 18-5-2010, whereby the Revisional Authority allowed the Revision and set aside the Order-in-Appeal No. 77/2007 dated 1-8-2007. 14. The main contention of the petitioner that the petitioner-Company was prevented from making its claims for rebate in view of the fact that the relevant documents required to be submitted in support of the claims were placed under seizure by the Directorate of Revenue Intelligence and considering the fact that the documents were returned on 28-7-2006 by the Directorate of Revenue Intelligence, the rebate claims were filed within the period of limitation. In support of this contention, reliance is also placed on the judgment of this Court in the case of Cosmonaut Chemicals [supra]. 15. Before we resort to dealing with the submissions made by the learned advocate on behalf of the petitioner, it would be worthwhile to refer to parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. Examining the facts of the present case in the light of the aforesaid, the documents in question had been seized by the Department of Revenue Intelligence and not by the Central Excise Department or Customs Department. Even before the said documents came to be seized, the petitioner had enough time to file a claim for rebate. Besides, even if the documents were seized by Directorate of Revenue Intelligence, it is not the case of the petitioner that it had approached the concerned authorities for return of the said documents and that the authorities had refused to do so. There is not a whisper in the entire petition to indicate that the petitioner had made any effort worth the name to secure the documents so as to enable it to file the rebate claims within the period of limitation. The petitioner remained totally passive and it was not till the documents were returned by the authorities concerned after the matter was settled before the Settlement Commission that the petitioner filed the rebate claim. Thus, it is apparent that the case of the petitioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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