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TMI Blog2013 (1) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... first. 2. The matter arises under the Central Excise Act, 1944. The respondent is a merchant-exporter and registered with the central excise authorities. It lodged rebate claims under Rule 18 of the Central Excise Rules, 2002 in respect of excise duty paid on goods procured from manufacturers initially for home consumption but subsequently exported. The claim was rejected by the Assistant Commissioner (Tech.), Central Excise, Delhi-II, who is the petitioner herein on the ground that some of the goods were exempt from duty as they were manufactured in specified areas, disentitling the respondent from claiming the rebate. A show-cause notice was accordingly issued to which the respondent objected on various grounds, including the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and the contentions and on a survey of the relevant case-law, the Central Government, acting through the Joint Secretary to the Government of India, upheld the order of the Commissioner (Appeals). The operative portion of the order in revision is as under: "From the perusal of the records, Govt. observes that the Commissioner (Appeals) has already passed a very detailed and reasoned order. Govt. agrees with the findings in said order and finds no reason to interfere with the said impugned order-in-appeal. 11. In view of the above discussions & findings, Govt. observes that the rebate was admissible in this case and accordingly Govt. upholds the impugned orders-in-appeal and rejects the revision application being devoid of merit." &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or modification of such order. Sub-section (1A) inserted by Act 27 of 1999 w. e. f. 11.05.2009 confers a similar right to the Commissioner of Central Excise in case he is of opinion that an order passed by the Commissioner (Appeals) under section 35A is "not legal and proper". He may direct the proper officer to make an application on his behalf to the Central Government for revision of such order. He is the real and actual applicant before the Central Government, and the "proper officer" who is directed to file an application for revision merely performs the ministerial function of filing the application. No filing fee is prescribed in case the application is filed by the Commissioner of Central Excise. Sub-section (4) of section 35EE em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusted to an official of the Central Government who is of the rank of Joint Secretary in the Ministry of Finance. He does not pass the revision order in his individual capacity or as a functionary under the Act; his orders are those of the central government itself. The section repeatedly refers to the "Central Government" and not to any official or functionary thereof. The Joint Secretary acts for the Central Government in passing the order. A perusal of the impugned order shows that there is repeated reference to the Central Government; thus the decision is of the Central Government itself. If this position is realised, it would appear clear that the contention of the petitioner that the writ petition has been filed not against the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, where the Division Bench pointed out the distinction between an executive or administrative order passed by the Central Government and a quasi-judicial order passed by it; it was held that in the latter case, the Central Government (the revisionary authority) acts as a quasi-judicial Tribunal and so its order would be amenable to the jurisdiction under Article 226 at the instance of the aggrieved party, be it the Central Government itself. This decision limits itself to the nature of the order passed by the revisionary authority under section 35EE and, with respect, does not examine the further question, necessarily to be answered, whether the Central Government can both be the author of the decision and also the aggrieved party. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility or contradiction in countenancing such a view, in addition to fostering indiscipline and chaos in the administration of the Act. 13. Counsel for the respondent is right in relying on sub-sections (5) and (6) of section 35EE to point out that in case the Central Government suo motu decides to issue notice to the assessee to enhance the penalty or fine or duty and after hearing the assessee decides to drop the proceedings, no grant of any opportunity to the Commissioner of Central Excise or any other officer executing the Act is envisaged. This shows that if the Central Government is of the view that the order of the Commissioner (Appeals) is legal and proper and requires no interference (by way of enhancement of duty, fine or p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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