TMI Blog2016 (6) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. - Government holds that the revision application has been filed within time under Section 35EE of the Central Excise Act, 1944 and question of being hit by limitation does not arise. Government observes that under Section 35 EE of the Central Excise Act, 1944, a Revision Application against the Order of Commissioner (Appeals) passed under Section 35 A ibid lies with Government only if such orders relate to cases as mentioned in the proviso to sub-section (1) of Section 35(B) of the Act. As the issue covered in this Revision Application relates to refund of unutilized credit under Rule 5 of Cenvat Credit Rules 2004, the subject matter is not covered in the first proviso to sub-section (1) of Section 35 B of the Central Excise Act 1944. Therefore, Revision Application on this issue does not lie before Central Government under Section 35 EE of the Central Excise Act, 1944. Further, Government observes that the Department as in the authorization to file Revision Application under Section 35EE (2) has erred in considering the issue as a case of rebate of duty. - Revision application dismissed - Decided against the revenue. - F.No. 198/114-A/2015-RA - ORDER NO. 56/2016-CX- - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 has been filed by the respondent in the High Court of Telangana and Andhra Pradesh at Hyderabad making a prayer that the original authority may be directed to grant refund pursuant to the impugned Order-in-Appeal, which is in their favour. Another issue for consideration before the Hon'ble High Court was whether a revision application had been filed by the Department or not. The Hon'ble High Court disposed off the above said Writ Petition vide Order dated 07.012016 (received in the Revision Application Unit on 23.02.2016 from the Dispatch Assistant, High Court of Telangana and Andhra Pradesh) with direction to the first respondent, viz. Union of India through Joint Secretary (Revision Application) to decide the pending Revision Application within two months from the date of receipt of a copy of this order and also directing that the observation if any made with regard to limitation will have no bearing on disposal of Revision Application and to decide the Revision Application, if it is otherwise in order uninfluenced by any of the observations herein above. 5. The Department has filed this revision application under Section 35 EE of Central Excise Act, 1944 before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1109.2012 of M/s.Blue Whale Industries, Vasai were asked to furnish copy of stock statement submitted to the Bank for the period from June, 2012 to 17.09.2012-and-also to furnish-copy of stock register for the period from June, 2012 to 17.09.2012. However, the same was not submitted by them. II. Subsequently, M/S. Blue Whale Industries vide their letter dated 03.12.2012 addressed to them, informed that: (i) They have shifted their unit to Guntur under Rule 10 of the Cenvat Credit Rules, 2004. (ii) They intend to utilize credit balance of lying unutilized at Vasai and post transfer to Guntur still lying in the books of account. III. Presently, the unit is not functional at the address viz., 113, Geeta Udyog Nagar, Building No.3, Valiv Road, Vasai Road (East), Thane-401 205. 5.3 Meanwhile, M/S. Blue Whale Industries, Perecherla, Guntur (AP), vide their letter dated 14.11.2013 have informed the Assistant Commissioner, Guntur Division that they have raised a credit entry of ₹ 1,44,10,817/- (Cenvat Credit-RG 23A Part-Il] ₹ 34,572/- (PLA) stating that they have concluded that there is substantial compliance of Rule 10(3) of the Credit Rules. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recherla, Guntur District (AP). The assessee have got the approval/permission to transfer the said credits of (Cenvat Credit - RG 23A Part-Il] ₹ 34,572/- (PI-A) neither from the jurisdictional Deputy Commissioner, Customs Central Excise, Vasai Division, nor from the jurisdictional Assistant Commissioner, Customs Central Excise, Guntur Division but have availed the said credits sue motto and thus, contravened the provisions of Rule 10 (3) of the Credit Rules and thus have suppressed the facts. 5.7 The relevant provision under which the refund claimed is Rule 5 of credit Rules which is reproduced hereunder: Rule 5: Refund of CENVAT credit - Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of consideration of refund arises. 6. A show cause notice was issued to the respondent party under Section 35EE of the Central Excise Act 1944 to file counter reply who vide their reply dated 10.03.2015 mainly stated as under: 6.1 A Revision Application under Section 35EE of the Central Excise Act, 1944 is required to be filed within 3 months from the date of the communication of the order against which the Revision Application was being made. A Revision Application may be allowed to be presented within a further period of 3 months if the Revisionary Authority was satisfied that the applicant was prevented by sufficient cause from presenting the application within the prescribed period of 3 months. Thus, the statutory scheme of Section 35EE of the Act is that a Revision Application has to be filed within 3 months of the communication of the order to be challenged, and delay of further 3 months could be condoned by the Revisionary Authority. But if a period of 6 months passed by and revision application was not filed within such total period of 6 months, then a Revision Application cannot be filed thereafter. A similar provision is made by the Legislature under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reported at 2015 (326) ELT 532 (Guj.), held that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided under the proviso to Section 35(1), nor could the appeal be filed beyond the period of 90 days. The Hon'ble High Court has also held that even a petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal; and it is further held by the Larger Bench of the Hon'ble High Court that a petition under Article 226 of the Constitution of India could be preferred for challenging the order passed by the original adjudicating authority on merits, but in limited circumstances. 6.5 We have claimed refund under Rule 5 of the Cenvat Credit Rules for a total sum of ₹ 2,57,77,440/. and on this refund claim lodged on 24.04.2014, a Show Cause Notice dated 18.06.2014 was served upon us thereby proposing to reject the refund claim to the extent of ₹ 1,44,10,817/-. On this show cause notice, an 010 No.62/2014(R) (CE) dated 02.07.2014 was passed by the Assistant Commissioner of Central Excise, Guntur, who sanctioned refund claim to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cenvat Credit was permissible while transferring a factory to another site with a specific provision for transfer of liabilities of said factory but we had not complied with the provisions of Rule 10 of the Cenvat Credit Rules laying down the above condition inasmuch as we have not obtained any clearance certificate or fact statement from the jurisdictional Central Excise authorities of Vasai Division, Maharashtra, regarding Central Excise credits/liabilities/plant and machinery/raw materials/semi-finished goods/finished goods in this case; (ii) that our Central Excise registration for Thane factory has not been surrendered and therefore there was contravention of the provisions of Rule 9 of the Central Excise Rules, 2002; and (iii) that though Rule 10 of the Cenvat Credit Rules refers to the satisfaction of the Deputy/Assistant Commissioner of Central Excise regarding transfer of stock of inputs as such or in process or the capital goods along with the factory or business premises to the new site, we had not got any approval/permission to transfer Cenvat credit as well as PLA balance from the jurisdictional officers of Vasai Division or from such officers of Guntur Division, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections deserve to be rejected at once in the interest of justice. 6.10.3 In this view of the matter, we request you to reject the Revenuers Revision Application. 7. In compliance of Hon'ble High Court's Order, personal hearing was scheduled in this case on 21.03.2016. 7.1 Shri Ratna Kishore, Assistant Commissioner, Guntur appeared on behalf of the Department who stated that Cenvat Credit has been incorrectly availed, for which Show Cause Notice has been issued and is pending adjudication. Therefore, refund of disputed amount cannot be allowed. He reiterated grounds of revision application. 7.2 Shri Venkat Chari, Chartered Accountant appeared for hearing on behalf of respondent and mainly reiterated contents of the written submission dated 15.03.2016. He laid emphasis on the point that the Revision Application is itself time barred and needs to be dismissed as such. Even on merits refund is admissible to them as it is not the jurisdiction of the Revisionary Authority to decide issue raised in the Show Cause Notice which is in any case pending adjudication. 7.3 The department vide their FAX, received in this Office on 29.03.2016 forwarded dispatch particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings before the Hon'ble High Court, it emerged that no revision application dated 13.01.2015 as dispatched on 16.01.2015 was received by Revision Application Unit in the month of January as it was sent to a wrong address but a copy was received from the applicant subsequently after their being informed that no such revision application is seen to have been received. The Hon'ble High Court disposed off the above said Writ Petition with direction to Revisionary Authority to decide the Revision Application within two months from the date of receipt of a copy of the order if it is otherwise in order and uninfluenced by any of the observations made there in above. 11 Government first proceeds to examine the issue of the limitation raised by the respondent. In this regard, Hon'ble High Court in its judgement in the following relevant paras has discussed the issue of limitation as under:- Even in those circumstances, the Kerala High Court held that filing of a Revision is within time since it was remitted by the Appellate Collector of Customs Cochin to the Revisional Authority. Persuaded by the principle laid down in Ruby Rubber Works, we are of the prime-faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The observations, if any, made with regard to the limitation will have no bearing on disposal of the Revision, pending before the 1st respondent, and the 1st respondent is requested to decide the Revision, I fit is otherwise in order, uninfluenced by any of the observations made hereinabove, as expeditiously as possible, in any event not later than two months from the date of receipt of a copy of this order, ' 11.1 Government observes that the time limit for filing Revision Application has been specified in Section 35EE (2) of the Central Excise Act, 1944 as under: ' (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 applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionary Authority. As such the Government observes that the Revision Application was filed on 22.01.2015 i.e. the date on which it was delivered at previous address of Revisionary Authority. 11.4 In this regard, Government finds support in the decision of the Hon'ble CESTAT in the case of Kanishk Steel Industries Ltd. 2005 (191) ELT 231 (Tri-Chennai) where in a similar situation, an appeal was sent by Speed Post to the Registry of the bench but nothing was heard from the Registry in relation to that appeal. Later on when a connected appeal arose before the Bench, the matter came to light that it was not received by the Registry. The Tribunal based on the Speed Post receipt which indicates that some postal article having been delivered to the Assistant Registrar,condoned the delay. 11.5 Government has also perused the decision of the Hon'ble Kerala High Court in the case of Ruby Rubber Works Ltd vs. Assistant Collector of Central Excise I.D.O Kottayam and others 1980 (6) ELT 615 (Kerala) and draws heavily from it as its ratio is squarely applicable to the present case. Needless to mention that even the Hon'ble High Court of Telangana and Andhra Pradesh in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.] Further, sub-section (1) of Section 35 B of Central Excise Act, 1944 reads as under:- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise either before or after the appointed day, under Section 35A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duties subject to safeguards conditions and limitations. Thus what Rule 5 envisages is not rebate of duty paid but refund of credit of specified duty which is not an issue covered under Section 35B (1) of the Central Excise Act 1944. Hence the case is not maintainable under Section 35EE of the Act. 12.4 Government in a catena of its decisions as in the case of M/S Resource Technologies Pvt. Ltd., Hyderabad Order No. 13/13-Cx dated 04.01.2013, M/S Hy Tech Engineers Pvt. Ltd., Chinchwad Pune, Order No. 105/2013-Cx dated 06.02.2013 and M/S Jubilant Life Sciences Ltd., Uttarakhand, Order No.103-124/2015-Cx dated 30.09.2015 has consistently held that as refund of unutilized credit under Rule 5 of Cenvat Credit Rules 2014 is not covered in the first provision to Sub-Section (1) of Section 35B, revision application under Section 35EE of the Central Excise Act is not maintainable. 13. In view of the above facts and circumstances, the Revision Application is held to be filed in time in compliance to provisions of Section 35 EE (2) of the Central Excise Act, 1944. However, as the Application filed before Central Government is beyond jurisdiction in terms of Section 35EE read with Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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