Kanha Internationale vs Union of India (UOI)

K.A. Puj, J.—The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the orders passed by the respondent No. 2 on 29-12-2006 as well as 9-12-2009. The petitioner has also prayed for the direction to the respondent No. 2 to pass fresh order on merits after taking into consideration the representation dated 8-8-2009.

Heard Mr. Hardik P. Modh, learned advocate appearing for the petitioner and perused the orders passed by the authorities below and the documents attached with the petition.

It is the case of the petitioner that the Deputy Commissioner vide its order dated 28-5-2004 rejected the refund claim of the petitioner. The said order was challenged before the Commissioner (Appeals) who vide his order dated 19-5-2005 confirmed the order passed by the Deputy Commissioner. The order of Commissioner (Appeals) was further challenged by way of Revision Application before the respondent No. 2 i.e. Joint Secretary, Govt. of India, Ministry of Finance (Department of Revenue), New Delhi. The Joint Secretary has also rejected the revision application by his order dated 29-12-2006. The petitioner filed Special Civil Application No. 11576 of 2008 before this Court. Though the order was passed on 29-12-2006, petition was filed in July, 2008. The said petition came to be withdrawn by the petitioner on 24-7-2009. While withdrawing the petition, the petitioner has made the submission that the communication dated 3-8-2005 from the Commissioner of Central Excise & Customs, Surat-I to the Deputy Commissioner was received by the petitioner under the Right to Information Act and hence, the petitioner wants to approach the Joint Secretary with a representation. Accordingly, this Court has permitted the petitioner to withdraw the said petition with a liberty to make representation which shall be considered in accordance with law.

After that order, the petitioner made a representation to the Joint Secretary on 8-8-2009 which was disposed of by the Sr. Technical Officer (RA) on 9-12-2009 stating therein that there is no provision u/s 35EE of the Central Excise Act, 1944 to reconsider the earlier orders which have been passed.

At this stage, the petitioner has filed present petition before this Court.

The only ground raised by the petitioner in this petition is that letter dated 3-8-2005 written by the Commissioner, Central Excise & Customs, Surat to the Deputy Commissioner was received by him in February 2009 wherein it is stated that rejection of the rebate claim of M/s. Kanha Internationale is not feasible because goods have been exported and duty paying documents are genuine. The Deputy Commissioner was, therefore, directed to process the rebate claims. On the basis of this letter, the petition filed earlier before this Court was withdrawn and representation was made.

The above letter which is heavily relied on by Mr. Modh is stated to have been written on 3-8-2005. By that time, the Deputy Commissioner has already taken the decision on 28-5-2004 whereby the refund claim of the petitioner was rejected by the Deputy Commissioner. Once the Deputy Commissioner has already passed order, against which the petitioner has filed an appeal before Commissioner (Appeals), there is no business of the Commissioner to issue such letter to the Deputy Commissioner. Even the Commissioner has also dismissed the appeal of the petitioner on 19-5-2005. Even if such a letter is written by the Commissioner to the Deputy Commissioner, the same was written during the pendency of the appeal before the Commissioner (Appeals). It is, therefore, not open for the Deputy Commissioner to take any cognizance of the said letter. Not only that, after dismissal of the appeal by the Commissioner (Appeals), the petitioner preferred revision application before the Joint Secretary and that revision application was also rejected on 29-12-2006. Even before the Joint Secretary also, there is no reference to such letter. The order passed by the Joint Secretary was challenged before this Court in Special Civil Application in 2008 and for the first time in 2009, the reference was made to this letter, on the basis of which the petition was sought to be withdrawn and accordingly, the said petition was withdrawn. Since there are three decisions of the authorities below who have given concurrent findings of facts while rejecting the claim of the petitioner, the petitioner has not invited any order of this Court on the merits so far as the order dated 29-12-2006 is concerned. All the three orders are self speaking orders and detailed reasons are given for rejection of the rebate claim of the petitioner. On the one hand, there are three orders of the competent authorities rejecting the refund claim of the petitioner and on the other hand, simply on the basis of one letter the petitioner wants to revive all these proceedings.

In the above view of the matter, when the Joint Secretary informed the petitioner that it is not possible to reconsider the order passed on 29-12-2006 looking to the provisions contained in Section 35EE of the Central Excise Act, we do not find any infirmity neither in the order dated 29-12-2006 nor in the order dated 9-12-2009. Even looking to the petitioner''s own conduct all throughout, we do not want to exercise our equitable writ jurisdiction in favour of the petitioner and there are several disputed questions of fact which cannot be gone into by this Court while exercising its writ jurisdiction. We, therefore, do not find any substance in the petition and the petition is accordingly dismissed.