COMMON ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE A.L DAVE)

1. RULE. Mr. P.S Champaneri, learned Assistant Solicitor General waives service of notice of rule for the respondents.

2. The petitioners are the Companies registered under the Companies Act, 1956, engaged in manufacture of various articles falling under Chapter 73 of the Central Excise Tariff. The petitioners used to get benefit of rebate on exports made by them. That benefit was initially granted by Circular dated 08.12.2006 Subsequently, Notification dated 17.09.2008 indicated that benefit of rebate would not be available after 08.12.2006 and later on by Finance Act, 2008, the benefit of rebate was made available only upto 07.12.2006 The petitioners' claim for rebate was denied by the order in original No. 1330 to 1331.R/AC/2007 dated 21.08.2007 and order in original No. 13.AC/2006 dated 28.02.2007

3. Aggrieved by the same, the petitioners preferred appeals before the Commissioner of Central Excise (Appeals), who by his orders in Appeal No. 373/2007.Commr(A)/Raj & 271/2007.Commr(A)/Raj and order in Appeal No. 271/2007.Commr(A) Raj dated 26.09.2007 rejected the appeals and upheld the rejection of the petitioners' rebate claim by respondent No. 4. The petitioners, therefore, challenged the said orders by preferring revision applications under Section 35(EE).

4. During the pendency of the above revision applications, Rule 18 came to be amended by notification dated 17.09.2008 followed by Finance Act, 2008 whereby Section 88 came to be introduced as a result of which notwithstanding anything contained in any order, judgment or decision of any Court, Tribunal or Authority, rebate of excise duty paid under the said notification was permissible in respect of exports upto 07.12.2006

5. As per the say of the petitioners, the petitioners addressed communication dated 12.05.2008 to the respondent No. 4 on the basis of the amendment made in Rule 18 and requested for sanction of rebate. The petitioners were then advised that refund claim can be allowed provided they withdraw the revision applications pending before the Joint Secretary. Acting under the advise, the petitioners addressed communications to the Joint Secretary seeking conditional withdrawal of the revision applications subject to getting rebate benefit from Assistant Commissioner. The said permission was granted by communication dated 22.08.2008 Upon withdrawal, respondent No. 4 allowed the rebate claimed by the petitioners by various orders. Surprisingly enough, these orders were challenged by the Department in Appeals being No. 2/2009 to 259 of 2009 before Commissioner (Appeals) who vide his order dated 3.01.2009 set aside orders passed in 258 Rebate claim matters and allowed all these appeals.

6. Aggrieved by this action on the part of the respondent authorities, the petitioners have approached this Court making following prayers:-

A. That this Hon'ble Court be 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 and proceedings of the case, and after going into the legality, validity and propriety thereof, to quash and set aside the impugned order communicated to the petitioners vide letter dated 22.08.2008 and 31.10.2008 issued by the Section Officer (RA) (Annexure - “J” and Annexure “O” hereto) and impugned order dated 09.01.2009 passed by the respondent No. 5 (Annexure “R” hereto);

B. That this Hon'ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or direction, directing respondent Nos. 2 to forthwith restore the Revision Application No. 195/100/08-RA (Annexure - “D” hereto) and dispose it in accordance with law;

C. That this Hon'ble Court be pleased to issue a Writ of Prohobition, or a Writ in the nature of Prohibition, or any other appropriate Writ, Order of direction, prohibiting the respondents from taking any action in furtherance of the impugned order communicated to the petitioners vide letters dated 22.08.2008 and 31.10.2008 issued by the Section Officer (RA) (Annexure - “J” and Annexure “O” hereto) and impugned order passed by the respondent No. 5 (Annexure “R” hereto);

D. That it is in the interest of justice, equity and good conscience that pending the hearing and final disposal of the Writ Petition, the respondents by themselves, their servants and agents be restrained by an order and injunction of this Hon'ble Court from:

(i) taking any adverse action to the detriment of the petitioners in furtherance of the impugned order communicated to the petitioners vide letters dated 22.08.2008 and 31.10.2008 issued by Section Officer (RA) (Annexure - “J” and Annexure “O” hereto) and impugned order dated 09.01.2009 passed by the respondent No. 5 (Annexure “R” hereto); and

(ii) to stay the operation of the impugned order communicated to the petitioners vide letters dated 22.08.2008 and 31.10.2008 issued by the Section Officer (RA) (Annexure - “J” and Annexure “O” hereto);

E. interim and ad-interim reliefs in terms of prayers Clause (c) and (d);

F. For cost of the petition and orders thereon.

7. It is contended by learned advocate Mr. Nankani that the department on one hand persuaded the petitioners to withdraw their revision applications assuring grant of rebate benefit and once those revision applications were withdrawn, the orders granting rebate are taken in review and the grant of rebate benefit has been withdrawn which is causing double jeopardy to the petitioners.

8. Learned Assistant Solicitor General Mr. P.S Champaneri has opposed these petitions.

9. Upon perusal of the communication dated 20.06.2008 addressed to the Joint Secretary (Review) by the petitioners, it is clear that the withdrawal was conditional. The relevant part of the said communication can be reproduced thus:-

“Since the amendment of Rule 18 of the Central Excise Rules, 2002 allows our rebate claimed upto 07.12.2006 by default, our Revision Application No. 195/100/08.RA may kindly be treated as withdrawn once the Assistant Commissioner of Central Excise, Gandhidham - Bhuj (original sanctioning authority) sanctions the rebate claim. It is further prayed that the Application may not be proceeded with till such time, to the extent of the period of claim till 07.12.2006”

10. It also appears that the copy of this communication was addressed to the Assistant Commissioner, Central Excise, Gandhidham - Kutchh for necessary sanction of the rebate amount in view of the amendment to Rule 18 of the Central Excise Rules, 2002. It is also not in dispute that pursuant to this communication, permission was granted to withdraw the revision applications and the Assistant Commissioner, Central Excise, Gandhidham granted the benefit of rebate to the petitioners. But some how, at a later point of time, the said orders were challenged in appeals before the Commissioner (Appeals), Customs & Central Excise, Rajkot who by order dated 09.01.2009 passed the order in appeal. The said appeals were preferred by Assistant Commissioner, Gandhidham who had himself passed the orders granting benefit of rebate. In that order, the Commissioner (Appeals) made the observation regarding permitting conditional withdrawal of revisions and ultimately, set aside the orders of the lower authority sanctioning rebate in respect of the petitioners' claim.

11. Having regard to the facts of the case, we are at loss to understand as to how the Assistant Commissioner of Central Excise himself could have challenged his own orders in appeal before the Commissioner (Appeals), Customs and Central Excise, Rajkot. That apart, once the rebate benefit was granted to the petitioners upon a condition that revisions should be withdrawn and the revisions were withdrawn, that order could not have been set aside prior to restoration of Revision. The order passed by the Commissioner (Appeals) is virtually in the form of the review because the appeals are preferred by the Assistant Commissioner himself.

12. We also find that by virtue of the provisions contained in the Finance Act, 2008, the benefit of rebate was available to the petitioners upto 07.12.2006, which is a period in question. In the circumstances, the order dated 09.01.2009 passed by the Commissioner (Appeals), Customs & Central Excise, Rajkot cannot be permitted to stand till the Revision is restored and decided on merits. The petitioners much before the date of order of the Commissioner (Appeals), approached the Revisional Authority, namely, Joint Secretary, Government of India for restoration and revival of the revision applications which has been refused by the authority by the communication dated 31.10.2008 saying that since the revision applications were permitted to be withdrawn at the request of the petitioners, no further order was required to be passed by this office. Thus, virtually, that request for restoration - revival of the revision applications came to be turned down.

13. The situation that is created by the action of the respondent authorities in respect of the petitioners is that the petitioners are not able to pursue the remedy that they had resorted to by preferring revision applications to challenge the order of the lower authority and Commissioner (Appeals), nor do they get the benefit of rebate in hope of which they had withdrawn the revision applications. In this set of circumstances, the revision applications at least deserve to be restored.

14. We, therefore, dispose of these petitions by setting aside the communication dated 31.10.2008 from the Ministry of Finance, Department of Revenue, refusing reinstatement of the revision applications of the petitioners and restore Revision Applications No. 195/100/08-RA, 195/03/08-RA, 195/04/08-RA, and also set aside the order dated 09.01.2009 passed by the Commissioner (Appeals), Central Excise, Rajkot.

15. The revisional authority shall decide the revision applications, stated herein above, afresh after hearing the parties and in view of the subsequent developments and in accordance with law, within a period of three months from the date of receipt of writ of this Court or certified copy of this order, whichever is earlier.

16. It would be open for the Commissioner (Appeals) to decide the appeals of the Department raising the question as to rebate claimed by the petitioners after the revision applications are decided afresh as per the above stated direction. Till then, he shall not take decision on the question of rebate in view of the fact that his order has been set aside.

17. Mr. Nankani states that the petitioners shall not press for rebate benefit wherever the amount is not received on the basis of the order of the Assistant Commissioner, till the revisions are decided.

18. In the result, the petitions are allowed. Rule is made absolute accordingly. No costs.

19. Office is directed to place copy of this judgment in each connected petitions.