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Judgment
With consent of the parties, the appeal is heard finally at this stage.
By filing this writ petition under Article 226/227 of the Constitution of India, the petitioner seeks to challenge the order dated 5-3-2010 bearing No. 195/279/07-RA-CX passed by Government of India, Ministry of Finance (Department of Revenue) (Annex. P/10) to this petition.
Brief facts necessary for the disposal of this writ petition need mention infra to appreciate the controversy raised by the writ petitioner in this appeal.
The petitioner - an assessee under the Central Excise Act, 1954 (for short hereinafter called "the Act") suffered an adverse order dated 29-3-2007 passed by Commissioner of Central Excise (Appeal), Jaipur in appeal No. 265 (HKS)CE/JPR-11/2007. The petitioner felt aggrieved by this adverse order, filed a revision petition before Government of India i.e. Specified revisionary authorities. It is this revision, which was dismissed by the impugned order dated 5-3-2010 by the revisionary authority by making following concluding observations :
In view of above discussions, Government observes that applicants have failed to submit valid proof of export in respect of ARE-1 No. 433, dated 14-12-2004 and therefore, there is no infirmity in the impugned order-in-appeal and the same is upheld.
It is against this order, as stated supra, the writ petition has felt aggrieved and filed this writ petition under Article 226/227 of the Constitution of India. Notice of this petition was served upon the respondents i.e. Ministry of Finance and Commissioner of Excise. They are now duly represented.
Having heard learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to allow this writ petition and while setting aside of the order dated 5-3-2010, remand the case back to the revi-sionary authority i.e. Joint Secretary to the Government of India for deciding the revision afresh in the light of our observations made infra.
It is essentially for this reason, we do not wish to embark upon the controversy involved on the merits while deciding this writ petition except to the extent what is necessary to sustain our order for remand.
The need to remand has occasioned for the reason that admittedly during pendency of the revision petition before the Government, the petitioner by their letter dated 24-12-2009 (Annex. P/9) had submitted additional documents in relation to the proof of export of the material which was subject matter of the controversy. It was the case of the writ petitioner that if these additional documents had been taken into consideration, then it would have proved that petitioner had exported the goods in question thereby entitling them to get certain benefits available to them under the Act. These documents were dispatched by the petitioner by registered post on 26-12-2009, which is clear from the postal receipts filed by the petitioner in this petition bearing No. 313001 RLADC 8417 Count No. 3, OP-Code 65. We have, however, noticed that while recording the finding against the petitioner that they have failed to submit proof of export in respect of ARE-1 No. 433, dated 14-12-2004, the revisionary authority did not take into consideration none of the additional documents filed by the petitioner with the revisionary authority. In other words, finding recorded by the revisional authority is based on non-consideration of the additional documents sent by the petitioner vide their letter dated 24-12-2007. It is for this reason, we are inclined to remand the case to the revisional authority with a direction to the re-visional authority to hear and decide the revision after taking into consideration the documents filed by the petitioner along with their letter dated 24-11-2009 to prove factum of export if they claim to have executed and which is subject matter of the controversy.
We are satisfied that petitioner did dispatch and send these documents to the revisional authority and, therefore, we grant liberty to the petitioner to file these documents again before the revisional authority after the remand of this case in case if they are not found in the record of Revisionary Authority.
Accordingly and in the light of the aforesaid discussion, the petition succeeds and is hereby allowed. The impugned order dated 5-3-2010 (Annex. P/10) passed by the respondent No. 1-4 is set aside by issuing writ of certiorari. The revision is restored to the file of Government of India i.e. Joint Secretary to the Government of India for deciding the same afresh in the light of what we have observed above. The revision shall be heard and decided strictly in accordance with law after taking into all documents already filed by the petitioner in addition to the one filed along with their letter dated 24-11-2009 in support of their case and then finding be given as to whether the petitioner has been able to prove the proof of export in respect of ARE-1 No. 433 dated 14-12-2004 or not thereby entitling them to seek benefits available to them under the Act as claimed by them in connection with the export in question. The revision shall be decided within six months from the date of production of this order. It shall be done by the petitioner within three weeks from today.