IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MARCH 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.32823/2016 (T-RES) BETWEEN :
M/S. BIOCON LIMITED 20TH K. M., HOSUR ROAD, ELECTRONIC CITY, BANGALORE-560100, (REPRESENTED BY S. R. SUNDARESH VICE PRESIDENT-COMMERCIAL). ... PETITIONER (BY SRI RAVISHANKAR K. S., ADV.) AND:
1. THE JOINT SECRETARY GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE (RA UNIT) 14, HUDCO VISHALA BUILDING, B WING 6TH FLOOR, BHIKAJI CAMA PLACE NEW DELHI-110066.
2. THE COMMISSIONER OF CENTRAL EXCISE LARGE TAX PAYERS UNIT (LTU) JSS TOWERS, 100FT. RING ROAD, BANASHANKARI 3RD STAGE, BANGALORE-560085. ... RESPONDENTS (BY SRI JEEVAN J. NEERALGI, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ORDER DATED 09.05.2016 PASSED BY RESPONDENT NO.1 ENCLOSED AT ANNEXURE-F (IN THIS PETITION "IMPUGNED ORDER") AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HERING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R The petitioner has challenged the legality of the order dated 12.05.2016, passed by the Joint Secretary to the Government of India, whereby the learned Joint Secretary has dismissed the revision application filed by the petitioner under Section 35 EE of the Central Excise Act, 1944 (“the Act”, for short) against the order dated 05.03.2012, passed by the Central Excise, Large Tax Payer Unit, Bangalore.
2. Briefly the facts of the case are that the petitioner is engaged in the manufacture of excisable goods falling under Chapters 28, 29, and 35 of First Schedule to the Central Excise, Tariff Act, 1985. The petitioner has an in-house Research & Development Unit (R & D Unit), which is duly registered with the Government of India, Ministry of Science and Technology, New Delhi. The petitioner has imported certain capital goods, mainly research and development equipments. The petitioner had imported certain R & D goods on concessional rate of customs duties vide Customs Exemption Notification dated 01.03.2005. The customs notifications either exempts payment of basic custom duty, or reduces basic custom duty which is payable. The petitioner further claims that the R & D equipments so imported, in terms of the above custom exemption notifications at concessional rates, was used for R & D purposes.
3. Subsequently, the petitioner set up a unit at Special Economic Zone (SEZ) at No.2, 3, 4 & 5, ‘Biocon Park’, Bommasandra Jigani Link Road, Biocon Special Economic Zone, Bommasandra Industrial Area, Bengaluru-9. The R & D Unit at ‘Biocon Park’ was also registered with the Ministry of Science and Technology, Government of India. After some time, the petitioner proposed to shift the imported R & D equipment/goods from its DTA-R & D unit to the SEZ-R & D unit. Accordingly, the petitioner intimated the Department of Scientific and Industrial Research, New Delhi, about shifting of some of the R & D equipments to SEZ for research and development purposes. Thereafter, the petitioner also applied to the Department of Scientific and Industrial Research, New Delhi (“DSIR”, for short), for its approval to shift the equipment from non-sales unit to the sales unit. The said approval was duly granted by the DSIR.
4. During the months of April, 2009 and March, 2010, the petitioner shifted the imported capital goods to their own SEZ-R & D unit at Jigani Link Road, Bommasandra, Bangalore, on payment of duty i.e., reversal of Cenvat Credit availed in respect of additional duties of customs paid at the time of import of capital goods.
5. The petitioner further claims that it had cleared/removed the Cenvat credit availed capital goods on payment of duty under claim for rebate as is evident from the copies of Central Excise invoices and ARE-1, and by following the procedure under Rule 30 of the Special Economic Zone Rules, 2006, read with Section 26 of the Special Economic Zone Act, 2005. Since the petitioner had cleared the goods to SEZ on payment of duty under rebate claim, it filed two separate rebate claims, namely Rebate Claim No.26 on 22.03.2010, claiming rebate of duty paid on Rs.93,91,358/-, and rebate claim No.62 on 13.07.2010, claiming rebate of duty paid on Rs.7,21,211/-. However, on 21.12.2010, the Assistant Commissioner (GLT-1), LTU, Bangalore, partly allowed the rebate claim filed by the petitioner. Since the petitioner was aggrieved by the said order, it filed an appeal before the Commissioner (Appeals). However, by order dated 05.03.2012, the Commissioner (Appeals) rejected the appeals filed by the petitioner, and upheld the part of the order, whereby the claim was dismissed by the Assistant Commissioner.
6. Since the petitioner was aggrieved by the order dated 05.03.2012, the petitioner preferred a revision application before the Joint Secretary, Government of India, New Delhi. According to the petitioner, the petitioner had received the order dated 05.03.2012 on 07.03.2012. The petitioner had three months time to file the revision application. Therefore, the limitation period would have expired on 07.06.2012. On 06.06.2012, the petitioner sent the revision application to the Joint Secretary by ‘Registered Post with Acknowledgement Due’. However, as the revision application reached the Joint Secretary eight days later, the petitioner also filed an application for condonation of delay in filing the revision application. However, by letter dated 12.05.2016, the revision application has been dismissed by the Joint Secretary ostensibly on the ground that the revision petition has been filed after the limitation period, and is delayed by eight days. Hence, this petition before this Court.
7. Mr. Ravishankar K.S. the learned counsel for petitioner, has pleaded that the Joint Secretary does have the power under Section 35EE (2) of the Central Excise Act, 1944 (“the Act”, for short) to condone the delay by further period of three months beyond the period of limitation. Despite the fact that the revision petition was delayed only by eight days, the Joint Secretary has rejected the revision petition on the technical ground that it is delayed by eight days. Therefore, the Joint Secretary has deprived the petitioner of his right to have access to justice by filing the revision petition.
8. On the other hand, the learned counsel for respondent has claimed that according to Rule 10 (2) of the Central Excise Rules, the filing of the revision application is the date on which the application is received in the office of the Under Secretary. Since the application was received after a delay of eight days, the Joint Secretary was justified in rejecting the revision application. Hence, the learned counsel has supported the impugned order.
9. It is, indeed, trite to state that procedure of law is an handmaid of justice. Procedural Law cannot be permitted to shackle justice. It is not only the duty of the Judiciary, but also equally the duty of a quasi-judicial body to do justice to the person who appear before such a quasi-judicial body. It is, also trite to state that “justice should not only be done, but it must appear to be done”. For, it is only when justice appears to be done that the people would have faith both in the institution, and in the Rule of Law. It is equally trite to state that an institution continues to thrive only as far as the people have a faith in its objectivity, in its transparency, and in its accountability. Thus, keeping these factors in mind, in catena of cases the Hon’ble Supreme Court has held that judicial and quasi-judicial bodies dealing with the question of condonation of delay should be liberal in their approach and not myopic in their vision.
10. A bare perusal of the impugned order clearly reveals that the Joint Secretary is of the opinion that sufficient cause has to be shown as to why the revision application could not be filed within the stipulated period of three months. But, the sufficient cause has to be shown for the delay, and not for the period during which the petition could have been filed.
11. In the present case, the petitioner had clearly stated that the revision application was submitted to the postal authority for being delivered at Delhi. But due to inefficiency of the postal department, the petition had reached Delhi, from Bangalore, after a delay of eight days. Once the petition was handed over to the postal department, the petition had no control over the delivery of the revision application in the office of the Under Secretary. Since the petition had been sent within the period granted by law, the petitioner had exercised due diligence. For, the petitioner cannot be blamed for the inefficiency of the postal department.
12. Since the petition was delayed only by eight days, there was no reason for the Joint Secretary to have a pedantic view of the matter. Even if the petition were delayed by eight days, the Revenue Department would not have suffered any loss if the revision application were to be entertained by the Joint Secretary. But, if the doors of justice were shut on the basis of delay, the petitioner would not only be deprived of seeking justice, but would also be deprived of the feeling that justice is being done to it. Therefore, by taking hyper-technical view of the matter, through the impugned order, the Joint Secretary has ensured that the petitioner would lose faith in the institution, and in the Rule of Law. Since the Joint Secretary does have the power to condone the delay by further period of three months, the said power should have been invoked by the Joint Secretary; the delay of merely eight days should have been condoned by him.
13. For the reasons stated above, the petition is hereby allowed. The order dated 12.05.2016, is set aside. The Joint Secretary is directed to condone the delay of eight days, and to decide the revision petition as expeditiously as possible.
Sd/- JUDGE Np/-