Madras High Court
Best And Crompton Engineering Ltd. vs Maritime C.C.E. on 13 February, 1998
Equivalent citations: 1998(101)ELT25(MAD)
ORDER K. Gnanaprakasan, J.
1. In both the writ petitions, the petitioner is one and the same and common question of facts and law are involved. Therefore, both the petitioner and the respondents agreed that both the writ petitions may be taken up together and disposed of.
2. The petitioner in both the writ petitions is the Company manufacturing Centrifugal pumps which are excisable goods under Tariff Act 30A of the first schedule to Central Excise Act, 1944. Rule 12 of the Central Excise Rules allowed rebate of duty paid on excisable goods being exported outside India to such extent and subject to some conditions and limitations. The petitioner-Company filed applications in Form AR-4A prescribed for export of excisable goods on payment of duty of excise subject to claim for rebate under Rule 12 of Central Excise Rules. Such applications were prepared on various dates and goods were all duly exported. All these goods were duly examined by the Customs Authorities at the Port of Export and the declarations filed by the petitioner-Company in the respective applications for export were found to be in order and also were found to be corresponding to the respective shipping bills filed for such exports. The respective dates of actual shipments were duly noted in the relevant bills of lading. The AR-4A applications filed by the petitioner-Company and filed along with the goods to the Customs Department, Customs House at Madras should have been, accordingly, endorsed certifying as to the factum of exports and returned by the Customs Department to be presented before the Central Excise Authorities for preferring the claim for rebate of excise duty on the excisable goods exported by the petitioner-Company in terms of Rule 189A of Central Excise Rules. But the petitioner-Company did not receive the copy of AR-4A application from the Customs Department and on enquiry it was learnt that the Customs Department had misplaced the applications. Therefore, the Customs Department issued certificates from Exports Department in their Form CBR Customs 307, incorporating the declarations and remarks furnished by the exporters, weight and value of the goods etc. to enable the petitioner-Company to prefer the rebates in respect of the goods exported.
3. The Authorities of Excise have been informed by the petitioner that the certificates have been issued in lieu of copy of the AR-4 which is missing in the Customs house. The applications filed by the petitioner claiming rebate were disposed of by the first respondent rejecting the claim on the ground that the presentation of the application for export with the endorsement of the Customs was not complied with, thereby the conditions of Notification No. 187/62 and the procedure under Chapter IX of the Central Excise Rules were not complied with and hence the exporter had not proved the factum of shipment as required under Rule 12 of the Central Excise Rules. Aggrieved by the same, the petitioner filed appeal before the second respondent, who passed an order that in the absence of the duplicate copy of AR-4A forms for export, the rebate should not be sanctioned. As against the petitioner filed the second appeal before the Customs, Excise and Gold (Control), Appellate Tribunal, Madras, Madras Bench and the appeals have been disposed of by observing that the matters shall fall within the jurisdiction of the Government of India and thereby dismissed the appeals.
4. Aggrieved by the same, the petitioner-Company filed this writ petition for the issue of writ of certiorarified mandamus to call for the records from the first respondent and to quash the orders of the Maritime Collector of Central Excise, the first respondent who has and as confirmed by the order in appeal and to grant the claim of rebate to the petitioner.
5. Heard. The learned Counsel for the respondents submitted that there is a provision to prefer a revision to Central Government under Section 35EE of the Central Excise Act, 1944 and therefore, the writ petition filed by the petitioner are not maintainable and it cannot invoke the jurisdiction under Article 226 of the Constitution of India. It is a well settled law that when there is TN alterative remedy provided under the Act, one can not approach this Court and invoke the provisions of Article 226 of the Constitution of India. The petitioner is not in a position to repudiate such a contention submitted by the respondents and therefore the writ petitions are not maintainable and they are liable to be dismissed. But however the learned Counsel for the petitioner submitted that he may be given as a liberty to prefer a revision before the Central Government. The said liberty is already available under the Act itself and as such, no separate liberty need be given. But it appears that the petitioner has to prefer the revisions, within the time allowed under Section 35EE of the Act. But he has been prosecuting the petition before this Court under bona fide belief that he can invoke jurisdiction under Article 226 of the Constitution of India and therefore the period consumed in this writ petition may be considered and condoned.
6. The petitioner is directed to prefer the revision to the Central Government within six weeks from the date of receipt of copy of this order and on receipt of the same, the respondents may dispose of the same in accordance with law. In the said view of the matter, the writ petitions are dismissed. There is no order as to costs.