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TMI Blog2007 (11) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ondicherry Division for re-entry of Cresol Chloride for reprocessing the same. It filed necessary D3 intimation under Rule 173-H, whereinafter the Assistant Commissioner, vide communication dated 30th Dec, 1992, granted permission under Rule 173-H for re-entry and reprocessing. The company exported the material with additional quantity of 5000 Kgs., of Cresol Chloride under AR4 No. 30. Though duty was paid with regard to others, no duty was paid on 2000 Kgs. of Cresol Chloride on which duty was earlier paid and was returned by M/s. Colour Chem Ltd., after reprocessing. The company filed a claim under Rule 12 on 11th Jan., 1993 for rebate of Rs. 6,84,590/-, i.e., the duty as was payable on 2000 Kgs., of Cresol Chloride and was paid by M/s. Colour Chem at the time of clearance of the said goods. However, no intimation was issued till a show cause notice was issued on 21st Sept., 1993, asking the company as to why the claim for rebate of Rs. 6,84,590/- be not rejected. The following grounds for rejection were cited in the show cause notice :- (i) The company was not eligible to bring back 2000 Kgs. to its factory under Rule 173-H(2); (ii) The description given in the delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emit the matter to the 1st respondent for fresh consideration on the question of maintainability of the revision application and also on merits. The first 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 sufficient opportunity to both the parties either to appear in person or through their counsel. The writ petition is allowed as indicated above. No costs." From the aforesaid order, it will be evident that the revisional authority was to return the paper books to the Collector, Central Excise, who was given liberty to re-present the revision application along with an application for condonation of delay for hearing the appeal after giving opportunity to the parties. 4. What happened was that the Collector of Central Excise, after taking return of the revision application, filed a revision application with a petition for condonation of delay on 13th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d allow at best, if it would have been preferred within further period of three months, i.e., total 180 days. While the Revenue took plea that the revision application was re-presented in view of the order of the High Court, the company took plea that it was a fresh revision application. According to the company, earlier revision application, which was returned, was not re-presented. It was also submitted on behalf of the company that a fresh show cause notice having been issued on 12th June, 1996, it cannot be presumed that the earlier revision application was represented. Thereafter, the revision application having been allowed by Order No. 147/96, dated 4th Nov., 1996, the company preferred the writ petition in question (W.P. No. 2368/97). Again the same ground was taken that the revision application so filed was a fresh revision application preferred after delay of more than 200 days and, thereby, it was barred by limitation. 7. At this stage, it is pertinent to mention that the revisional authority, while passing the order, unfortunately made certain comment with regard to the earlier judgment of the High Court. Learned Single Judge, while noticed such unwarranted remark, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not passed on the burden of duty to other persons. Reliance was placed on the following observation made by the Supreme Court in the case of Mafatlal Industries Ltd., (supra) :- "(x).......So far as the jurisdiction of the High Courts under Article 226 of the Constitution - or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transfress them." 11. From Section 35EE, it will be evident that the application under sub-section (1) has to be made in such form and verified in such manner as specified by rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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