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Revision u/s 35EE - Revision by officer of same rank as who passed order under challenge is not permissible: High Court

By TIOL News Service

CHANDIGARH, JUNE 06, 2016: THE Petitioner is an exporter of excisable goods. The Petitioner had cleared goods for export through a merchant exporter against form H which has been prescribed under Central Sales Tax Act, 1956 as a proof of export of goods. However, the Central Excise department refused to accept the proof of export and demanded duty. The appellant filed a revision application before the Revisional Authority against the order passed by the Commissioner (Appeals). The Revisional Authority dismissed the application and the same is challenged before the High Court.

It is the contention of the Petitioner that the Revisional Power has been exercised by the officer of the same and equal rank who had upheld the demand and the same is not permissible. The Petitioner has also relied on the decision in case of M/s Prakash Pipes Industries Limited, Mayar, Hisar vs. State of Haryana and another, in CWP No.9415 of 1990, decided on 21.10.2015 in support of the submission.

After hearing both sides, the High Court held:

+ In M/s Prakash Pipes Industries Limited's case, while considering identical situation, after examining the relevant case law on the point, it was held that the revision by the officer of the same rank was not permissible.

+ In the present case, the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs. Thus, the order in appeal as well as revisionary order had been passed by the officer of the same rank which is not permissible as per law. The judgments relied upon by the respondents, it may be noticed that the said decisions were based on individual fact situation involved therein. Thus, the respondents cannot derive any advantage from the said pronouncements.

Accordingly, the High Court allowed the Writ Petition and set aside the impugned order with liberty to the State to proceed afresh in accordance with law.

(See 2016-TIOL-1066-HC-P&H-CX)


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