TMI Blog2018 (5) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... as the petitioner has received the notice dated 02.06.2014. The order impugned has been passed by the respondent no. 2 after a gap of more than about three and half years from the date of filing of the appeal and while passing the said order the respondent no. 2 has not looked into the contends of the notice dated 02.06.2014 which clearly stipulates a marginal period allowed to the petitioner to pay the short fee, for each of the revision applications @ ₹ 800/- within a period of 15 days. Impugned order do not sustain - petition allowed - decided in favor of petitioner. - Writ Tax No. 716 of 2018 - - - Dated:- 1-5-2018 - Hon'ble Krishna Murari And Hon'ble Ashok Kumar, JJ. For the Petitioner : Suyash Agarwal For the Respondent : A.S.G.I.,B.K.Singh Raghuvanshi ORDER ( Per : Ashok Kumar, J. ) Heard Sri Suyash Agarwal, learned counsel for the petitioner and Sri B.K.S. Raghuvanshi, learned counsel for the respondents. This writ petition has been filed for seeking the following reliefs:- (i) Issue writ, order or direction in the nature of certiorari quashing revisional order no. 199/132-135/2014 dated 04.01.2018 served on 18.01.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, and on which the question of rebate of duty does not arise. The goods acquired from their sister unit have been shown to be exported under Rule 19 and not under Rule 18 ibid. Therefore, recourse to Rule 18 for claiming rebate on any part of the consignment does not appear to be admissible. (iv) The goods including bought out tubes have been exported in discharge of export obligation of Advance Authorization issued under Notification No. 96/2009-Cus Dated 11.09.2009 though Condition No. (viii) of the notification Dated 11.09.2009 stipulates that export obligation as specified in the said authorization (both in value and quantity terms) is discharged within the period specified in the said authorization or within such extended period as may be granted by the Regional Authority by exporting resultant products, manufactured in India which are specified in the said authorization and in respect of which facility under Rule 18 (rebate of duty paid on materials used in the manufacture of resultant product) or sub-rule (2) of the Rule 19 of the Central Excise Rules, 2002 has not been availed. The petitioner filed the detailed reply, to the show cause notice dated 23.04.2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees. Explanation to section 35EE of the Act provides as follows:- Explanation- For the purposes of this sub-section, order passed under section 35A includes an order passed under that section before the commencement of section 47 of the finance Act, 1984 against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal. (1A) The [Principal Commissioner of Central Excise or Commissioner of Central Excise] may, if he is of 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. Sub-clause 2 of 'explanation' provides that an application under sub-Section (1) shall be made within three months from the date of communication of the order to the application of the order against which the application is being made. Proviso of Sub-Section (2) of explanation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber should invariably be quoted while corresponding in future. In para 2 of the said notice it is mentioned that the registration can be made final only on the submission by the petitioner the following documents within a period of 15 days of receipt of the letter dated 02.06.2014, failing which the revisions shall be dismissed as not maintainable without any further reference. In the said notice after para 2 at serial no. 1 it has been mentioned that the petitioner is required to deposit further ₹ 800/- more for each revisions. For the convenience true photo copy of the notice dated 02.06.2014 is produced hereinbelow:- Based and in compliance of the instructions issued vide notice dated 02.06.2014, the petitioner vide covering letter dated 20.06.2014 had deposited TR-6 Challan Nos. 00054, 00055, 00056 00058 all dated 19.06.2014 of ₹ 800/- each with the State Bank of India. The petitioner was under the impression that all requirement are fulfilled by him in pursuance of the notice dated 02.06.2014, by furnishing the fresh challans as desired by the respondent no. 2. The petitioner however was surprised when the impugned order nos. 195/132-135/2014 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the petitioner has claimed the rebate of excise duty. There is no dispute that the requirement of payment of fee before or at the time of filing of revision application is mandatory but in the instant case, we find that the appeals were filed before the respondent no. 2 on 13.05.2014 against the order of the Commissioner (Appeals) dated 09.12.2013, the deficiency of the amount has been cleared as soon as the petitioner has received the notice dated 02.06.2014. The entire fee has been paid on 19.06.2014 i.e. within a period of 16 days. Whereas in para 2 of the notice dated 02.06.2014 the petitioner was required to complete the deficiency within a period of 15 days of receipt of the notice dated 02.06.2014. We are surprised that this aspect of the matter has not been examined by the respondent no. 2 that the office of the respondent no. 2 itself has allowed the grace period of 15 days vide its notice dated 02.06.2014 to fulfil the condition by making the short payment of ₹ 800/- each for entertainment of the pending revision applications. The respondent no. 2 in fact has taken a date of filing of the revision applications namely on 13.05.2014 while calculating the grace ..... X X X X Extracts X X X X X X X X Extracts X X X X
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