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MERSERS BLUE WHALE INDUSTRIES & ANO. Versus JT. SECY., MIN. OF FINANCE, NEW DELHI & ANO.

2016 (1) TMI 1111 - ANDHRA PRADESH HIGH COURT

Withholding of refund as allowed by the Central Excise (Appeals) - appellant submitted that no Revision Application or any other Petition by the revenue - Revenue submitted that the Revision Petition was sent within time to the address given in the preamble of the order passed by the Commissioner (Appeals) and, therefore, the contention that the 2nd respondent did not file any Revision before the 1st respondent is false and due to pendency of the Revision only the amount could not be paid and al .....

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etween the rights of both the parties and pass appropriate order by exercising jurisdiction under Article 226 of the Constitution of India. - To avoid loss to any one of the parties to this Writ Petition, we find that it is a fit case to direct the 1st respondent to dispose of the Appeal pending before them, as 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 und .....

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Mandamus directing the 2nd respondent to refund an amount of ₹ 1,44,10,817/- to the petitioners and implement the order in OIA No.64/2014(G)CE, dated 29.10.2014, passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Guntur alleging that the 1st petitioner is a manufacturer of mouth freshener, having its unit at Perecherla, Guntur and the 2nd petitioner is one of the partners of the said firm. During the period of October and December, 2013 when the petitioners firm .....

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d 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 enti .....

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Excise (Appeals), Customs and Service Tax, Guntur, who, after due enquiry, ordered for refund of ₹ 1,44,10,817/-. Immediately, the petitioners had applied for refund of said amount but the 2nd respondent did not repay the amount on the pretext that the 2nd respondent preferred an Appeal before the 1st respondent at Delhi. Later, the petitioners made an attempt to know the stage of Revision by calling for information under R.T.I. Act both in the respondents offices but no purpose was serve .....

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t ) permits the 2nd respondent to withhold such huge amount without preferring any Revision and, even if any Appeal is preferred, in the absence of any stay of refund, the 2nd respondent is not entitled to withhold the same and finally prayed to allow the Writ Petition and pass the aforesaid reliefs. The respondents filed counter denying the material allegations inter-alia contending that the Revision Application in C.No.V/02/01/2015-Trib dated 13.01.2015 has been filed in the office of Joint Se .....

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d in the case. As there is a minor change in the office address of the Joint Secretary (RA) communicated in the preamble, letter dated 18.02.2015 was addressed to the 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 09.09.201 .....

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ndent 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 Revision Application submitted to the address mentioned in the preamble of the order in OIA passed by the Commissioner (Appeals) to the ad .....

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dent is false and due to pendency of the Revision only the amount could not be paid and along with the Revision the Miscellaneous Application filed for early and out of turn hearing are pending, therefore, non payment of the amount is not due to any other reason and finally prayed to dismiss the Writ Petition. During course of hearing, Sri G. Vidyasagar, learned senior counsel, appearing on behalf of the petitioners, contended that the Revision is required to be filed within 90 days or at least .....

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ade. However, the proviso thereby permits the concerned authority to condone delay of 3 months thereafter. Learned senior counsel also drawn the attention of this Court to several Circulars issued by the Central Board of Customs dated 22.02.2001 and 26.06.2014 to contend that mere filing of Revision by the 2nd ,respondent would not debar the petitioners to seek refund of the CENVAT credit of ₹ 1,44,10,817/- immediately. Whereas Sri B. Raj Kiran, learned Standing Counsel for the Central Exc .....

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er, 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 a .....

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Section 35EE(1) in Form EA-8 (in duplicate) along with the prescribed fee under Section 35EE(3) to the Joint Secretary to the Government of India, Ministry of Finance and Company Affairs (Department of Revenue), Jeevan Deep Building, Sansad Marg, New Delhi within three months from the date of the communication of the order to the appellant. Accordingly, the 2nd respondent sent a Revision by post to the address mentioned in the preamble. Even the office of the Commissioner of Customs, Central Ex .....

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assed by the Committee of Commissioners there was a specific direction to the 2nd respondent to file a Revision only to the address mentioned in the preamble of the order dated 29.10.2014. In view of the direction of the Committee of Commissioners, the 2nd respondent sent a Revision along with a covering letter dated 13.01.2015 to the Joint Secretary, Government of India, Ministry of Finance and Company Affairs, Department of Revenue, Jeeven Deep Building, Sansad Marg, New Delhi annexing the req .....

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868 of 2015 filed by the petitioners but it was confirmed by the authorities concerned that no such Revision was received in the office of the 1st respondent. As seen from the material produced by the respondents, the Revision was sent by registered post, to the address mentioned in the preamble of the order, on 16.01.2015 vide registered ,letter along with acknowledgment due from Guntur, Collectorate Post Office bearing No.A RN610846349IN, i.e., the Joint Secretary, Government of India, Ministr .....

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amble 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 a .....

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r (Appeals) and as directed by the Committee of Commissioners of Customs, Central Excise and Service Tax. Therefore, without noticing the change in the address of the office of the 1st respondent, the authorities misdirected the 2nd respondent; consequently, the matter could not be taken up by the Revision Authority-1st respondent, immediately. However, sending of Revision Application to the address mentioned in the order is sufficient compliance of the direction and sending of Revision to the w .....

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after giving an opportunity of being heard to the petitioner even though received late in his office. In the facts of the decision cited supra, the Revision Application was filed before the 3rd respondent in view of furnishing of wrong address. The letter therein was, unfortunately for the petitioner, addressed through inadvertence to the Appellate Collector of Customs, Cochin. It is stated by the petitioner therein that it was transmitted by that office to the correct address of the 2nd respond .....

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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 pri .....

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nst 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 an order afresh for refund of the CENVAT credit collected from the petitioners. Undoubtedly, those circulars directed the concerned authorities of the Central Excise Department to refund the claim in case no stay was obtained though appeal is filed but here the situation is peculiar and the respondents were disabled even to obtain a s .....

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stitution is discretionary and such discretion must be exercised judiciously, taking into consideration all the attending circumstances. In the present facts of the case, as directed by the Appellate Commissioner and Committee of Commissioners, the Revision was sent to the Joint Secretary, Government of India, Ministry of Finance and Company Affairs, Department of Revenue, Jeevan Deep Building, Sansad Marg, New Delhi but the office address of the Joint Secretary (Revision Jurisdiction) Ministry .....

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