TMI Blog2016 (7) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... oned that they had posted the application on the last day of the stipulated 3 months period and that the delay is caused due to postal delay, The applicant has failed to give any documentary evidences to justify that there were sufficient cause, which prevented them from filing Revision Application in stipulated time in support of their claim for the delay in filing of appeal. Under such circumstances, Government is of the considered opinion that onus to show cause for not filing Application is on the applicant who has failed to show sufficient cause that prevented him from filing Revision Application within stipulated period of three months. The Revision Application has been made contrary to the provisions of Section 35EE (2) and is, therefore, liable for rejection. - Decided against the applicant. - F.NO.195/593/12-RA - ORDER NO. 59 2016-CX - Dated:- 9-5-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by the applicant M/S Biocon Limited, Bangalore against the No. JM/28/2012 dated 05.03.2012 passed by the Central Excise, Large Tax Payer Unit, Bangalore with respect to Order-in-Original passed by The Assistant Commissioner (GLT-I), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d paid additional duty of customs and availed Cenvat credit of the same and when the capital goods were removed to SEZ the credit so availed was paid and hence whatever duty which was actually paid was claimed as rebate. Therefore the both the lower authorities have proceeded to reject the rebate claim on an extraneous ground. 4.2 The applicant submits that the impugned order is improper in law in as much as the authorities below have not appreciated that there was no exemption from payment of duty or the applicant had not claimed any exemption benefit in respect of other customs duties such as CVD, education cess and SHE cess and Special CVD. Hence, the question of fulfilling or otherwise of conditions envisaged in Notification No.21/2002-Cus would have no relevance. 4.3 The applicant submits that the Adjudicating Authority has sanctioned rebate in respect of goods imported under Notification No.24/2005-Cus dated 01.03.2005 and No.25/2005-Cus dated 01.03.2005 but has rejected the rebate in respect of goods imported under Notification No.21/2002-Cus dated 01.03.2002. It is submitted that there is no difference between above Notifications when it comes to payment other dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962. In this regard, the applicant places reliance on the decision of the Supreme Court in Hyderabad Industries Ltd vs IJOI, 1999 (108) ELT 321 (SC) - para-10 of the decision. Further, the Supreme Court in UOI vs Modi Rubber Limited, 1986 (25) ELT 849 (SC) held that when an exemption Notification exempts duty of excise it does not mean that there is an exemption from special excise duty, auxiliary duty or additional duty of excise. Reliance is also placed on the decision of the Bombay High Court in Shree Rajasthan Texchem Ltd vs IJOI, 2010 (252) ELT 8 (Born.). Therefore, in the applicant's case, it is submitted that the payment of other duties of customs leviable under Section 3 of the Customs Tariff Act, 1975 is not exempted by Sl.No.248 of Notification No.21/2002-Cus. When there is no exemption granted in respect of other duties of customs, the conditions in Sl.No.53 of Notification in question cannot be read into in respect of said other duties. 4.7 The applicant submits that assuming without admitting that condition No.53 of Notification No.21/2002-Cus has been violated then the proper remedy available to department is to demand customs duty which has been exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10(2) of the Central Excise (Appeals) Rules, 2011 read with section 35EE (2) of the Act the delay caused in receiving the revision application may kindly be condoned as the delay is caused due to transit on the part of the Postal authorities and the delay so caused is condonable as per law. In this regard, the applicant places reliance on the decisions in Viresh Kumar Bros vs CC, 1987 (27) ELT 699 (Tri.); Jhabboo Lai Kesara Rolling Mills vs IJOI, 1985 (19) ELT 367 (All.) and in Vanivilas Cooperative Sugar Factory Ltd vs I-JOI, 1983 (12) ELT 290 (Kar.) 5.3 The applicant submits that they place reliance on the decision of the Honorable Supreme Court in the case of Collector vs Mst Katiji, 1987 (25) ELT 185 (SC) in support of this application and implore to condone the delay in filing the present appeal and hear the stay application and the main appeal in the interest of justice. 6. Personal hearing scheduled in this case on 10.11.2015 and 08.12.2015. It was attended by Shri K.S. Ravi Shankar, Advocate on behalf of the applicant. At the outset he requested that delay of 8 days may be condoned as it was dispatched by speed post from Bangalore within due date. The grounds of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow it to be presented within a further period of three months. Further Rule 10(2) of Central Excise (Appeals) Rules, 2001 provides as under: The Revision Application sent by registered post under sub-rule (1) shall be deemed to have been submitted to the said Under Secretary on the date on which it is received in the office of such officer. From perusal of above provisions, it is clear that stipulated period of filing Revision Application is three months from date of receipt of and is deemed to have been submitted only upon receipt of Revision Application in the office of Revision Application Unit. The present Revision Application has been filed beyond three months period. This period may be extended by further three months provided sufficient cause has been shown which prevented the applicant from filing Revision Applications in time. 11. Government finds that the applicant in their Application for condonation of delay has in a general manner mentioned that they had posted the application on the last day of the stipulated 3 months period and that the delay is caused due to postal delay, The applicant has failed to give any documentary evidences to justify tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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