Shree Rajasthan Syntex Ltd. @APPELLANT@Hash Union of India

Mr. Justice Gopal Krishan VyasÂ

In both the writ petition following prayer is made by the petitioners, which reads as under:-

“(i) That the present writ petition may kindly be allowed and the impugned order dated 1010.2017 (Annex.13) passed by the Respondent No.4,Â

impugned Order-in-Original dated 31.3.2005 (Annex.9) and impugned order â€" in â€" Appeal dated. 12.8.2015 (Annex.10) may kindly be quashed

and set asideÂ

(ii) By giving effect to judgment dated 2.1.2005, 1.7.2011 of this Hon'ble Court and judgment of Hon'ble Supreme Court , the Respondents should

process and decide the rebate claimsof the petitioner within stipulated timeframe.Â

(iii) By an appropirae writ order or direction the rebate claim filed by the petitioner may kindly be allowed as prayed for.Â

(iv) Any other relief deed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners.

(v) costs be quantified in favour of the petitioners.â€​Â

 As per the facts of the case both the petitioners preferred revision application under Section 35 EE of the Central Excise Act, 1944 against the

order in appeal No.464-465(HKS)CE/JPR-II/2005 dated 12.8.2013 whereby the revisional authority (respondent no.4) dismissed the revision petition

only on the ground of delay of 8 years in filing revision petition.Â

 As per the facts of the case, the petitioner procured the raw material at Nil rate of duty under Notification No.43/2001-CE(NT) dated 26.6.2001

subject to the condition that the final products manufactured from such raw material would be exported. The Central Board of Excise and Customs,

vide its notification No.10/2004 â€" CE (NT) dated 2.6.2004, amended the above said notification by inserting an explanation to provide that the

export of goods can be effected under Rule 19 of the Central Excise Rules only. The Central Board of Excise and customs, vide its circular

no.792/25/2004-CX dated 2.6.2004 also clarified that the explanation inserted in Rule 19 will be effective from 26.6.2001.  In above situation, a

show cause notice was issued by the Jurisdictional Assistant Commissioner to disallow the rebate claims to the petitioner on the ground that they

had exported the goods under Rule 18. However, o getting various representation from the industries against the above mentioned circular, the

CBECÂ issued another circular no.805/2/2005-Cx dated 11.1.2005 clarifying that the explanation in notification no.43/2001-CE (NT) shall be

applicable prospectively i.e., from 2.6.2004, but not to the exports made after 2.6.2004. in the meantime, soon after CBEC had issued earlierÂ

circular dated 2.6.2004, the petitioner had filed a SBCWP Nos.4634/2004 and 4751/2004 before this Court which was disposed of vide order dated

2.2.2005 when the CBES issued its 2nd circular dated 11.1.2015Â clarifying that the amendment in notification no.43/2001-CE(NT) notification

no.10/2004 CE (NT) is applicable from prospective effect and not from retrospective effect. The matter was reconsidered by the Assistant

Commissioner of Division and the petitioner’s claim were rejected on the ground that the petitioner had exported the goods covered under

relevant ARE-1 after 2.6.2004 only and the date of clearance from the factory under ARE-1 cannot be considered as date of export. TheÂ

petitioner’s appeals before the Commissioner (Appeals) were also rejected.

 Being aggrieved, the petitioner filed an appeal before CESTAT on 28.10.2005 against the OIA No.464-465 (HSK) CE/JPR-II/2005 dated

12.8.2005. Finally the CESTAT, vide its final order No.A56607-566087/2013-EX(DB) dated 24.5.2013 dismissed the petitioner’s appeal as not

maitnianble on the ground that they did not have jurisdiction over their appeals as these relate to rebate of Central Excise Duty. After dismissal of

their appeal by CESTAT, petitioner has filed the revision petition before the revisonal authority on 19.8.2013 on the ground that they had cleared

goods from factory prior to amendment in notification No.43/2001-CE (NT) w.e.f. 2.6.2004 and, therefore, the date of clearance of goods from

factory should be considered as date of export and the rebate of duty should b paid to them. The aforesaid revision application were filed beyondÂ

specific period of three months and application for condonation of delay was also filed for the reason that they lost time in pursuing remedy

before the wrong forum due to bonafide mistake and the same is condonable by virtue of several decision of various court and tribunal.

 The learned revisional court rejected the revision application on the ground that as per Section 35 EE (2) of the Central Excise Act, 1944 the

application under sub-Section (1) i.e., revision application can be made within three months from the date of communication to the petitioner of the

order against which the application is being made. The learned revisional authority observed that proviso to sub Section (2) authorizes the

Government to allow the petitioner to present the application within a further period of three months if the government is satisfied that the petitioner

was prevented by sufficient cause from presenting the application within the normal period of three months.

 Admittedly, the revision petition was filed against the orders dated 9.8.2005 on 19.8.2013 after more than 8 years and the petitioner made request

for condonation of huge delay on the ground that they availed wrong forum to challenge the order. The learned revisional authority observed that it

was not bonafide mistake and sufficient cause which prevented the petitioners from filing revision application in time as it was their conscious

decision to file an appeal, which is not on account of any ignorance of law or lack of resources. Further, it is held that petitioner is major bsiness entity,

backed by a storng managerial and legal team, and the above facts fully demonstrate that they always fought their legal battle at all plate forms. When

CBEC had issued its earlier cirtuclar dated 2.6.2004 clarifying that explanation in notification No.43/2001-CE (NT) will be effective from

retrospective effect, the petitioner immediately approached Rajasthan High Court and when their rebate claims were rejected by lower authority

and the appellate authority they not only filed the appeals before the CESTAT but also seriously pursued their appeals for almost 8 years until their

appeal’s were dismissed by CESTAT for lack of jurisdiction over the issue. It is also observed that when appeals were filed before CESTAT

by them despite Commissioner (Appeal) had expressly advised the petitioner in his order dated 9.8.2005 that in case they are aggrieved with his

order then they should revision application to the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi,

but the application overlooked the Commissioner (Appeal)’s above advise an filed appeal before the CESTAT. Further observed that V.

Laxmikumaran field number of revision applications for hundreds of clients before the Central Government earlier on regular basis. Thus, they were

fully aware that the CESTAT was not a proper appellate forum for dispute of rebate claim. It is also observed that petitioners themselves have

filed the five revisonis applications with the Government of India involving the dispute regarding rebate of duty in similar fashion, therefore, it is not

a case to condone the delay.Â

 Learned counsel for the petitioner invited our attention towards the judgment rendered by the Delhi High Court in M/s Sun Pharmaceutical

Industries ltd Vs. UOI & Ors. WP(C) No.7120/2001 dated 22.8.2016 and another judgment of Hon'ble High Court of Punjab and Haryana High

Court in the case of in the case of M/s. Gilco Exports Ltd. Vs. Union of India in CM No.12812of 2014 dated 17.12.2014 and judgment of the Hon'ble

Supreme Court in the case of MP Steel Corporation Vs. Commissioner of Central Excise in Civil Appeal No.4367/2004 dated 23.4.2015 and submits

that the delay was to be condoned by the revisional authority after 8 years.

 After hearing learned counsel for the parties it emerges from the facts that petitioner preferred revision petitions after delay of 8 years knowingly

well that revision is not maintainable, preferred appeal before CESTAT and CESTAT Commissioner specifically apprised the counsel for the

petitioner in his order dated 9.8.2005 that in case petitioner is aggrieved with the order, he should file revision application to the Joint Secretary,

Government of India, Ministry of Finance, New Delhi but the petitioners over looked the Commissioner’s advise and perused the appeal before

the CESTAT for 8 years and in between said period some revision petition were field in other matter, meaning thereby, it is not a fit case in which a

bonafide mistake has been committed by the petitioners, more so, it is a case in which with open eyes the petitioners preferred appeal before

CESTAT and after 8 years when appeals were dismissed on the ground of maintainability, the petitioners preferred revision petition, in which

impugned orders were passed by the revisional authority.

 In our opinion, it is not a fit case in which delay of 8 years can be condoned to entertain revision petition or to direct the revisional authority to

decide the revision petition on merit because all the facts submitted before the revisoinal authority for condonation of delay were considered

objectively and, thereafter, the revision petitions were dismissed.Â

 In view of the above, no case is made out to interfere in the impugned orders. Therefore, both the writ petitions are hereby dismissed.Â