Page 186 - ELT_1st July 2020_Vol 373_Part 1

96 EXCISE LAW TIMES [ Vol. 373

CASE CITED
Commissioner v. AIA Engineering Ltd. — 2011 (21) S.T.R. 367 (Guj.) — Referred ......................... [Para 3]
REPRESENTED BY : Shri Biswajit Mukherjee and Ms. Manisha Nath, for
the Petitioner.
S/Shri Somnath Ganguli and Bhaskar Prosad
Banerjee, for the Respondent.
[Order]. - This specially assigned writ petition has been heard on several
occasions.
2. Petitioners supplied Aviation Fuel (ATF) to aircrafts operating inter-
national flights out of Gaya Airport. The supplies therefore were exports. Peti-
tioners had claimed rebate available on such exports. Two points for considera-
tion arise on rejection of the claims. One is limitation provided in Section 11B of
Central Excise Act, 1944, limiting the period to claim rebate as one year from rel-
evant date. Mr. Mukherjee, Learned Advocate appears on behalf of petitioners
and submits, initial application was made within time but a fresh application had
to be made thereafter. The second point in issue is omission of petitioners to
submit original documents amounting to an irregularity of procedure provided
in Central Excise Rules, 2002.
3. Petitioners have challenged revision order dated 6th July, 2012
passed by Joint Secretary to the Government of India, setting aside order-in-
appeal, to restore order-in-original. On limitation Mr. Mukherjee, Learned Advo-
cate appearing on behalf of petitioners, relies on Commissioner of Central Excise v.
AIA Engineering Limited dealt with by a Division Bench of High Court of Gujarat
reported in 2011 (21) S.T.R. 367 (Guj.), paragraphs 7, 8. Mr. Ganguly, Learned
Advocate appears on behalf of revenue and submits, appellate order is perverse
and was rightly set aside.
4. Section 35EE in Central Excise Act, 1944 provides for revision by
Central Government, which may annul or modify the order. Court required as-
sistance on judicial interpretation of word ‘annul’ used in the provision.
5. Mr. Ganguly draws attention to Sections 35C and 35EE. According to
him, interpretation of word ‘annul’ can be made on conjoint reading of sub-
sections (1) in Sections 35C and 35EE. While Appellate Tribunal may confirm,
modify or annul or restore, Central Government can only annul or modify the
order. He submits, there has been, in effect annulment and there should be no
interference.
6. Following from paragraph 10 of impugned order is reproduced be-
low :
“In view of above circumstances, the rebate claim was rightly rejected by
original authority as time-barred. Government, therefore, sets aside the im-
pugned order-in-appeal and restores the impugned order-in-original.”
7. Dictionary meaning of word ‘annul’ is given as, to declare invalid.
Court has perused impugned order. It is clear Central Government sat in appeal
to confirm order-in-original, on setting aside appellate order. Inserted by
amendment sub-section (1A) in Section 35EE clearly requires the Commissioner
to apply for revision. Revision is not appeal.
8. Impugned order is set aside and the writ petition succeeds.
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EXCISE LAW TIMES  1st July 2020  186