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TMI Blog2016 (1) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Mouth Freshener, which is classified under sub-heading No.21069020 of the I Schedule of the Central Excise Tariff Act, 1985 the 1st petitioner did not clear the manufactured goods into the domestic market; in the normal course of business, the petitioners firm used to purchase various consignments of Indian Mouth Freshener in bulk and pay excise duty and, therefore, the petitioners firm availed CENVAT credit of duty paid on the goods and undertook process of manufacturing i.e., repacking the goods from bulk to retail packs and label them under the brand 'Legend' for export purpose. Thus, the petitioners firm exported the goods under the said brand and, on submission of proof of exports, the said brand has been discharged vide acceptance of proof of export No.V/05/08/2012-Tech dated 17.04.2014. The petitioners firm had an erstwhile unit engaged in the same activity at Vasai in Maharashtra; however, the petitioner firm is not entitled to claim refund of Rs. 2,57,77,440/- CENVAT credit since the petitioners firm discontinued its production within the local area. Accordingly, applied for refund of CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004 read with Rule 19 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new address of the office of Joint Secretary to ascertain as to whether any Revision Application has been received in the office. Subsequently, 2nd respondent filed another Miscellaneous Application on 19.02.2015 for early and out of turn hearing; however, there was no response from the office. Hence, another letter dated 09.09.2015 was addressed to the 1st respondent narrating the facts. The respondents denied the allegation that the 2nd respondent did not file any Revision Application before the 1st respondent against the order passed by Commissioner (Appeals) contending that the Revision Application has been filed vide letter dated 13.01.2015 before the Joint Secretary, New Delhi under Section 35 of the Central Excise Act. In view of the letter correspondence by the 2nd respondent with the 1st respondent, the 1st respondent addressed a letter in DY.No.1295/15/-RA (CX), dated 13.10.2015 to the 2nd respondent and the same was received by the 2nd respondent on 26.10.2015 whereunder the 1st respondent informed the 2nd respondent that the said Revision Application was not received to their office. On receipt of the said letter, the 2nd respondent immediately submitted a copy of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 29.10.2014, passed by the Commissioner (Appeals), is proper filing within time. Mere change of the address, non receipt of the Revision Application due to change in the address is not a ground to reject the Revision. However, sending the Revision Application to the address mentioned in the preamble of the order amounts to filing of Revision within time, placed reliance on a decision of Kerala High Court in Ruby Rubber Works Limited, Kerala Vs. Assistant Collector of Central Excise, Kottayam 1980 (6) ELT 615 and several orders of the Government of India and other Tribunals in support of his contention, contending that the 2nd respondent is taking steps to get the Revision disposed of as expeditiously as possible and prayed to dismiss the Writ Petition. Passing an order dated 29.10.2014 by the Commissioner (Appeals), for refund of Rs. 1,44,10,817/- towards part claim of CENVAT credit is not in dispute but filing of a Revision under Section 35EE of the Act before the Joint Secretary, Government of India is in dispute. As seen from the material available on record, Commissioner (Appeals) in the preamble of the order dated 29.10.2014 specifically stated that the aggrieved p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment due from Guntur, Collectorate Post Office bearing No.A RN610846349IN, i.e., the Joint Secretary, Government of India, Ministry of Finance and Company, Department of Revenue, Jeevan Deep Building, Sansad Marg, New Delhi but the actual address of the 1st respondent is Joint Secretary (Revision Jurisdiction) Ministry of Finance, 14 Hudco Vishal Buildings, Bhikhaji Cama Palace, New Delhi. As the Commissioner of Appeals clearly stated that a Revision would lie to the office of Joint Secretary (Revision Jurisdiction) specifying the address therefore the 2nd respondent sent a Revision only to the address mentioned in the preamble of the order passed by the Commissioner of Appeals dated 29.10.2014; that apart, even the Committee of Commissioners of Customs, Central Excise and Service Tax, after review, by exercising power under Section 35EE(1A) of the Act, directed the 2nd respondent to file Revision before the Joint Secretary (Revision Jurisdiction) along with address. Later, it came to the notice of the respondents that office of Joint Secretary (Revision Jurisdiction), Ministry of Finance was not located in the address given in the preamble of the order, after addressing number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Therefore, we do not wish to express any opinion at this stage about the limitation. One of the contentions of the petitioners is that the 1st respondent has no authority to condone the delay beyond three months under Section 35EE(2) of the Act. No doubt, the power conferred on the 1st respondent is limited. However, when the application was sent to the wrong address due to the misdirection of the Appellate Commissioner and the Committee of Commissioners, such filing of Revision cannot be said to be barred by limitation prima- facie and when it is filed within time, as directed by the committee of Commissioners and suggested by the Commissioner of Appeals, the same could have been considered by the 1st respondent as a good ground to entertain the Revision. Learned counsel for the petitioners has drawn our attention to the Circulars issued by the Government of India, Ministry of Finance, where the Department clarified that no refund or rebate claim should be withheld on the ground that an Appeal has been filed against the order giving the relief, unless the stay order has been obtained. Taking advantage of this Circulars, learned counsel for the petitioners requested to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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