TaxTMI 
TaxTMI 
2025 (6) TMI 1807
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.... pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ order or direction, calling for the records of the Petitioner's case and after going into the legality and validity thereof to quash and set aside the impugned order dated 31.03.2023 issued by the Respondent No. 2. (c) Pending this petition, this Hon'ble Court be pleased to issue any other or direction ordering and directing the Respondent No.3 by themselves, their subordinate servants and agents to refrain from taking any coercive action till the disposal of the petition. (d) Your Lordships may be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case." 3. The brief facts of the case are as under: 3.1. The petitioner no. 1 is a partnership firm engaged in manufacture and exports of parts of Maize & Milling Machine under Tariff Item 8474.90 of the First Schedule to the Central Excise Tariff Act, 1985 (for short 'Act of 1985'). 3.2. The petitioners also availed the benefit of Notification No. 9/2003-CE dated 01/03/2003 for clearance made for home consumption and also on payment of 16% ....
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....ty i.e. Joint Secretary, Government of India against the order confirming the recovery of rebate as per Section 35EE of the Central Excise Act, 1944. 3.7. The CESTAT passed the final order dated 03/05/2019 allowing the appeal of the petitioner to the extent of classification of the goods claimed by the petitioner on the ground that the same had attained finality as there was no proposal on the show cause notice nor any clear order was passed in order-in-original about classification from heading 8474 to heading 8437 and therefore the claim of CENVAT Credit of Rs. 14,48,600/- was held to be correct and legal as the goods classifiable under chapter heading 847490 attracts duty and for the remaining portion of order pertaining to the recovery of rebate of Rs. 29,66,342/- with interest and penalty as well as imposition of penalty upon petitioners No. 2 and 3, the petitioner was granted the liberty to file revision application before the appropriate authority as the CESTAT had no jurisdiction to decide the same in terms of proviso to Section 35B(1) of the Central Excise Act, 1944. 3.8. The petitioners therefore preferred revision application under Section 35EE of the Central Excis....
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....y has held that the revision applications are time barred and do not survive, inspite of the same, the same were considered on merits by confirming and upholding the order of the Commissioner (Appeals) dated 24/11/2010. 8. It was submitted that once the Revisional Authority has held on one hand that the revision applications are time barred then the revision applications ought not to have been entertained on merits, more particularly, when the CESTAT has held on merits that the products manufactured by the petitioners are classifiable under the Chapter Heading No.84749000 and not under Chapter Heading No.84379090 and Revisional Authority could not have upheld the order passed by the Commissioner (Appeals) on the same issue which was already decided by the CESTAT. 9. In support of his submissions, reliance was placed on the following decisions: (1) Decision of this Court in case of Choice Laboratories Limited vs. Union of India reported in 2015 (315) E.L.T. 197 (Gujarat). (2) Decision of the Bombay High Court in case of Union of India vs. Epcos India Pvt. Ltd. reported in 2013 (290) E.L.T. 364 (Bombay). (3) Decision in case of J. M. Baxi & Co. v. Gov....
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....It was therefore submitted that the Revisional Authority were justified in examining the issue of classification independently as the Revisional Authority was duty bound to consider as to whether the order passed by the Commissioner (Appeals) or recovery of the rebate was just and proper or not. 14. In support of his submissions, reliance was on the following averments made in affidavit-in-reply filed on behalf of the respondents: "Para-G-I:- The Petitioner has contended that the Revisionary Authority has no jurisdiction to decide classification of goods, while deciding any revision application filed under Section 35EE of the Central Excise Act. 1944. In the present case, the adjudicating authority held that the Petitioner had wrongly classified the Parts of Maize Milling Machine under CETSH No. 8474.90 and that parts of Maize Milling Machine were appropriately classifiable under Chapter sub heading No. 84379090 attracting NIL tariff rate, as the said Maize Mill machine was used for manufacturing Corn Flour. The adjudicating authority further held that the Petitioner had wrongly availed Cenvat credit of inputs used for the manufacture of parts meant for Maize Milling Ma....
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....TAT under Section 35C of the Central Excise Act, 1944, and the Order passed by the Revisionary Authority under Section 35EE of the Central Excise Act, 1944, are two separate proceedings. Further, Order passed by the Hon'ble CESTA is not binding on the Revisionary Authority. Thus, non-filing of appeal against CESTAT's order and consequent finality of CESTAT order has no bearing on the outcome of the proceedings lying before the Revisionary Authority. In this regard, Para 20 of the Order No. 211-213/2023-CX(WZ)/ASRA/Mumbai dated 31.03.2023 of the Revisionary Authority has appropriately passed the findings on the subject matter of classification and recovery. Para L-M: The Petitioner has contended that when penalty is imposed the Petitioner firm, simultaneous penalty on Partner and an employee, acting as authorized signatory, is not imposable. The adjudicating authority, as well as Appellate Authority has elaborated the role played both Petitioner No. 2 and Petitioner No. 3, who were Partner and Authorized Signatory of the Petitioner firm, respectively. It has been held that Petitioner No. 2 and Petitioner No. 3 were fully aware about the declaration filed by them and....
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.... facts of each case." 8. In view of the above Writ Petition/SCA filed by the petitioner is not maintainable before this Hon'ble High Court and it is prayed to dismiss the petition." 15. Referring to the above averments, it was submitted that no interference may be made in the impugned order by this Court by exercising extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. 16. Having heard learned advocates for the respective parties and considering the facts of the case, it is an admitted position that the petitioner has availed the wrong forum to challenge the order of the Commissioner (Appeals) so far as the orders for recovery of rebate already sanctioned to the petitioner instead of preferring a revision application before the Revisionary Authority. It is also apparent from the record that the time limit prescribed for filing an appeal before the CESTAT is three months whereas the petitioner has preferred the appeals within two months and twenty one days and therefore as per the provision of Section 14 of the Limitation Act, the petitioner is entitled to the benefit of approaching the wrong forum and therefore the Revisional Auth....
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....1) of Central Excise Act, 1944. Accordingly, Appeal No. E/274/2011 is partly allowed and for the rebate matter and personal penalties of individuals the appellants have liberty to file revision application before the appropriate authority. Accordingly, the appeal of Sh. Dineshbhai Kotecha and Sh. Dipakbhai Padshah are dismissed as non-maintainable." 19. On perusal of the above order passed by the CESTAT, it is clear that the classification dispute raised by the lower authority was not reflected in the show cause notice. The show cause notice issued by the respondent authorities for both the purpose i.e. for rejecting the refund claim of the rebate and recovery of the rebate. Therefore, the proposal of classification has to be found in the show cause notice for both i.e. for rejection of the rebate claim as well as recovery of the rebate claim already sanctioned. Therefore, when the CESTAT has categorically held that there was no specific proposal for classification of the dispute nor the same was reflected in the order-in-original and thereafter discussing the classification in the body of the show cause notice as well as order is rightly held to be not to alter the classificati....