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TMI Blog2014 (2) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... e warehousing of petroleum products viz. Motor Spirit, High Speed Diesel, Superior Kerosene Oil, Aviation Turbine Fuel, Furnace Oil falling under Chapter 27 of the First Schedule to the Central Excise Tariff Act, 1985, applied for condonation of dormant loss/transit losses vide their various applications for the period January, 2003 to December, 2003 and application dated, 14-1-2004 for the period November, 2002 to December, 2003 of their different petroleum products tank wise/month-wise. The applicant were issued a Show Cause Notice dated, 26-8-2004 by the department, wherein it was alleged that the said losses were caused due to improper maintenance of warehousing storage tanks and transit tankers on the part of the applicant resulting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the fact that once a decision has been taken to reject the remission application, no further adjudication is left in the case which may require the observance of procedure laid down under Section 11A. 4.3 Even the judgment in the case of M/s. Krishnonics Ltd. - 2005 (180 E.L.T. 406 relied upon by the Commissioner (Appeals) specifically points out that the demand of duty would arise only after the remission application is decided and any demand made earlier would be a presumption of rejection of remission. This clearly establishes that the period of limitation specified under Section 11A cannot be made applicable to demands arising consequent to rejection of remission applications. 4.4 The Commissioner (Appeals) has not take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case were beyond the permissible limits and the party had not adduced any evidence showing proper reasons of such huge losses due to natural causes or by unavoidable accident as required under the law, the findings of the Adjudicating Authority were fully within the purview of the Show Cause Notice. 5. A Show Cause Notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. No counter reply has been received. 6. Personal hearing scheduled in this case on 21-6-2011 was attended by Shri. L.P. Asthana, Advocate on behalf of the respondent. 7. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Original-in-App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;For understanding the relevant legal provisions, the relevant section is reproduced below : "Section 35EE. Revision by Central Government. - (1) The Central Government may, on the application of any person aggrieved by any order passed under Section 35A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 35B, annul or modify such order : .............. .............. .............. (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are creature of Customs Act cannot be directed to ignore or act contrary to Section 27 of Customs Act. There is a time-limit prescribed under section 35EE for filing Revision application which has not been followed in this case. As such the ratio of said judgement of apex court is squarely applicable to this case. The revision application is thus clearly time-barred and liable to the rejected without going into the merits of the case. Hon'ble High Court of Madras vide order dated 30-11-2009 in W.P. No. 1443 of 2005 in the case of M/s. A.D. Jeyaveerpandia Nadar & Bros, Chennai v. Government of India (Revisionary authority) has held that under Section 129DD of Customs Act the condonable period is 3 months and beyond that the revisionary aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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