TMI Blog1996 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed under the Central Excise Rules, 1944. M/s. Colour Chem Ltd., Thane, received the said goods in their factory as an input and took credit of the duty paid on the said goods under Rule 57A of Central Excise Rules. The credit was taken in their RG 23A Part II. M/s. Colour Chem Limited, Thane, after a lapse of one year and ten months cleared the abovesaid goods under Rule 57F(1)(ii) of the Central Excise Rules, 1944, to the petitioner under GP 1 No. 74, dated 10-11-1992 on payment of duty of Rs. 6,90,000/-. The petitioner, by their letter EXE/Accts/92-93/3801, dated 20-11-1992 requested permission from the Assistant Collector, Pondicherry Division for re-entry of 2000 kgs. of Cresol Chloride cleared by them originally under their GP 1 No. 20, dated 29-12-1990 to M/s. Colour Chem Limited, Thane. They have also requested permission for reprocessing the said goods. The petitioner has also filed the necessary D-3 intimation No. 2, dated 21-11-1992 under Rule 173H. 4.The Assistant Collector of Central Excise, Pondicherry Division, granted permission under Rule 173H by his order dated 20-11-1992, communicated by his letter dated 30-12-1992. At the time of clearance for export, duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority by his order No. 133/94(M), dated 16-5-1994, upheld the contentions of the petitioner and set aside the order of the 2nd respondent and directed consequential relief. 7.The 3rd respondent filed a review application under Section 35EE of the Act for review of the order of the Appellate Authority, before the 1st respondent. The 1st respondent issued a show cause notice dated 20-10-1994 calling upon the petitioner to show cause as to why the Order-in-Appeal No. 133/94 (M), dated 16-5-1994 of the Appellate Authority should not be annulled and set aside. The review application was mainly on the question of facts. A personal hearing was granted to the petitioner before the 1st respondent and the 1st respondent by his Order No. 27/95, dated 9-8-1995 set aside the order of the Appellate Authority and restored the order of the 2nd respondent and has disallowed the claim for rebate of Rs. 6,85,590/- claimed by the petitioner. It is against this order, the petitioner has filed the present writ petition. 8.According to Mr. R. Sashidharan, learned Counsel for the petitioner, the order passed under Section 35EE of the Act is final and there is no appeal provided under the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 11A." 10.It is contended by the learned Counsel for the petitioner that the revision application filed under Section 35EE(1) of the Act itself was time barred and this was one of the grounds taken by the petitioner before the 1st respondent in the revision proceedings. It is further contended that the powers of review can be exercised by the Central Government only in cases where questions of law arise and further, there can be no revision on the basis of fresh grounds being beyond the scope of the original show cause notice. 11.Even though the matter was argued on merits by both sides, I am not inclined to go into the merits of the rival claim for the simple reason that the writ petition can be disposed of on the question of limitation. I have also perused the counter affidavit filed by the respondents and also the records placed before this Court in the form of typed set. 12.As seen earlier, the Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and the petitioner was asked to state its objections in writing and also to state whether the petitioner would be heard in person before the case is decided. On receipt of the said notice, the petitioner by their reply dated 10-12-1994 objected to the maintainability of the revision application. It is contended on behalf of the petitioner that the revision application is time barred in terms of Section 35EE of the Act and is contrary to law and facts. It was submitted that the application for revision has been made under Section 35EE(1) and not under Section 35EE(4) of the Act as mentioned erroneously in the revision application, on the basis of which the show cause notice had been issued. 15.Section 35EE(2) of the Act prescribes that 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. Admittedly, copy of the order in Appeal No. 133/94 passed by the Collector of Central Excise (Appeals), Madras, was received in the Office of the 3rd respondent on 20-5-1994. As per the statutory time prescribed, the last date for filing an application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nability of the application under Section 35EE(4), cannot at all be countenanced. The reasons given by the 1st respondent in entertaining the revision without assigning any reason is not at all satisfactory. Hence, as rightly contended by the learned Counsel for the petitioner, the application as presented was not admissible, having been filed beyond the statutory time limit of three months. 19.This apart, it is also contended that the revision can only be on question of law and not on questions of fact. No reasons have been given by the 1st respondent to differ from the appellate authority's view. Therefore, I set aside the order impugned in toto and remit the matter to the 1st respondent for fresh consideration on the question of maintainability of the revision application and also on merits. The 1st respondent shall return the papers filed in the form of revision to the 3rd respondent with liberty to represent the same with an application under the Proviso to Section 35EE(2) of the Act. On receipt of such application, the 1st respondent shall give an opportunity to the petitioner to put forth their objections on the question of delay and then decide the matter after affording ..... X X X X Extracts X X X X X X X X Extracts X X X X
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