2019 (8) TMI 426 - HC - Central Excise

Court restores revision application under Central Excise Act after 1005-day delay, emphasizing burden of proof.

The Court set aside the rejection of the revision application under Section 35EE of the Central Excise Act, 1944, due to a delay of 1005 days. It held ... Condonation of delay of 1005 days in filing the revision application - Section 35EE of the Central Excise Act, 1944 - HELD THAT:- There is no reason to disbelieve the statement of the Petitioner on oath that the order dated 15 March 2011 of Commissioner (Appeals), being impugned before the revisional authority, was received on 18 December 2013. This particularly in the absence of any evidence being led by the Revenue, that the order dated 15 March 2011 of the Commissioner (Appeals) was served in the manner provided in Section 37C of the Act. Therefore, the period of three months for filing of the revision in terms of Section 35EE of the Act has to be computed from the communication of the order dated 15 March 2011 to the parties which has taken place only on 18 December 2013. Thus the revision application is in time. The Petitioner's revision application restored before Respondent No.1 for the consideration on merits - Respondent No.1 was not justified in rejecting the Petitioner's application on account of delay, as, in fact, there is no delay on the part of the Petitioner in filing the revision from the order dated 15 March 2011 - petition allowed. Issues involved: Challenge to rejection of revision application under Section 35EE of the Central Excise Act, 1944 based on delay in filing the application.Analysis:1. Issue of Delay in Filing Revision Application: The petition challenges the order rejecting the revision application under Section 35EE of the Act due to a delay of 1005 days. The Petitioner argued that there was no delay as the order dated 15 March 2011 was received on 18 December 2013, and the revision application was promptly filed thereafter. The impugned order dismissed the condonation of delay application for lack of evidence that the order was not received when passed. The Petitioner clarified that the delay application was filed as a precaution. The Court found no reason to doubt the Petitioner's statement that the order was received in 2013, especially in the absence of evidence from the Revenue proving otherwise. The Court held that the revision application was filed within the prescribed time, and it was unfair to expect the Petitioner to prove the negative of not receiving the order earlier.2. Burden of Proof on the Revenue: The Court emphasized that the burden of proof lies with the Revenue to establish, through evidence, that the order was received by the Petitioner earlier than claimed or deemed to have been received under Section 37C of the Act. Since no such evidence was presented, the Court concluded that the revision application was timely filed, and the rejection based on delay was unjustified.3. Decision and Order: In light of the above analysis, the Court set aside the impugned order and directed the restoration of the Petitioner's revision application for consideration on merits before Respondent No.1. The Court explicitly stated that there was no delay on the part of the Petitioner in filing the revision application from the date of receiving the original order. Ultimately, the petition was allowed in favor of the Petitioner, highlighting the importance of proper evidence and burden of proof in such cases.This detailed analysis of the judgment showcases the Court's meticulous consideration of the facts and legal provisions involved in the challenge to the rejection of the revision application based on delay, ultimately leading to a favorable outcome for the Petitioner.