COMMISSIONER OF CENTRAL EXCISE Vs. JUBILANT ORGANOSYS LTD

JUDGEMENT

(1.) By this Writ Petition, under Article 226 of the Constitution of India, the Commissioner of Central Excise, Raigad challenges the order passed by the Joint Secretary (Revisional Authority), Government of India dated 30th April, 2012, dismissing the Revision Application under section 35EE of the Central Excise Act, 1944. The Revision Application was directed against the order passed in Appeal by the Commissioner of Central Excise, Raigad dated 31st May, 2010.

(2.) Mr. Jetly appearing on behalf of the Petitioner submits that both the Appellate and the Revisional Authority have failed to exercise the jurisdiction vested in them by law and particularly to satisfy themselves about mandatory pre-condition. The Respondent failed to satisfy mandatory pre-condition. That mandatory pre-condition was, whether the goods which are supposed to have been exported and in relation to which the rebate claim arises were indeed the same. The goods which were in the custody of the Customs and for which let export order had been issued by the Customs Authorities and the goods which were cleared from the factory/depot were not the same. Mr. Jetly submits that the bill of lading which is issued after the goods were loaded is dated 31st March, 2007, which is well before the goods were cleared from the warehouse. In fact the mate receipt is dated 2nd April, 2007, however, the goods were removed from Bhiwandi on 2nd April, 2007 at 23.00 hours. It would have been impossible for the goods to be loaded on the ship before 24.00 hours on 2nd April, 2007. In such circumstances, the order-in-original rightly concludes that the identity and the correlation of the goods has not been established. Mr. Jetly has taken us through the findings recorded in the order-in-original and particularly at paras 10, 11 and 11.1. He has contended that the jurisdictional Superintendent, Central Excise has not verified and supervised the goods. There is no endorsement/signature on the copies of ARE1.In these circumstances, the rebate claimed was rightly rejected. Mr. Jetly has complained that without these findings being termed as perverse or vitiated by any error of law apparent on the face of the record, the Commissioner has allowed the Appeal. Equally, the Revisional Authority failed to apply its mind to these vital factors. There ought to have been an independent application of mind by the Revisional Authority. For all these reasons, he submits that the Writ Petition be allowed.

(3.) Mr. Sridharan-learned Senior Counsel appearing for the Respondent, on the other hand, supports the concurrent findings in the order of the Appellate Authority and that of the Government. He submits that the Writ Petition is not a continuation of the proceedings so as to enable this Court to reappreciate and reappraisal the factual findings. The Writ Petition be therefore dismissed.