K. S. Jhaveri, J. - (1.) By way of this petition, the revenue has challenged the judgment and order of revisional authority and prayed for the following reliefs: "It is, therefore, prayed that this writ petition be accepted; the Hon'ble Court may be pleased to call for the entire record of the case and: (i) by issuance of writ of certiorari or any other appropriate wit, order or direction in the nature thereof, the order dated 10th May, 2007 passed by the respondent No.2 be quashed and set aside; (ii) by any other appropriate writ, order or direction in the nature thereof, the Hon'ble Court may pleased to set aside the order dated 10.05.2007 (Anx.-3). The Hon'ble Court may further be pleased to hold that since the amount was deposited by the respondent in the name of excise duty which was not actually leviable by law therefore the amount so deposited will not be in the name of duty, it will be only in the nature of deposit with the Government and accordingly, no refund by way of allowing credit of CENVAT of SED is admissible to the respondent No.1 with respect to the said amount.
(2.) Counsel for the respondents has raised a preliminary objections that in view of the decision of Delhi High Court in the case of Union of India vs. IND Metal Extrusions Pvt. Ltd, 2013 289 ELT 106 (Del.) wherein in para 9, 12 & 13 it has been held as under: "9.The preliminary objection seems to us to be well-taken. The order passed by the Central Government under section 35EE cannot be challenged or questioned by a functionary of the Central Government. The Act is a central Act. The functionaries under the Act, such as the Assistant Commissioner, Deputy Commissioner, Joint Commissioner, Additional Commissioner, Commissioner of Central Excise, Commissioner (Appeals) or Chief Commissioner of Central Excise are all functionaries under the Central Government, executing the Act. It is the Central Government itself which acts under section 35EE as revisionary authority, dealing with revision applications filed both by the assessee and the Commissioner of Central Excise. Since the Central Government also has to act only through human agency, the function is entrusted to an official of the Central Government who is of the rank of Joint Secretary in the Ministry of Finance. He does not pass the revision order in his individual capacity or as a functionary under the Act; his orders are those of the central government itself. The section repeatedly refers to the "Central Government" and not to any official or functionary thereof. The Joint Secretary acts for the Central Government in passing the order. A perusal of the impugned order shows that there is repeated reference to the Central Government; thus the decision is of the Central Government itself. If this position is realised, it would appear clear that the contention of the petitioner that the writ petition has been filed not against the Central Government but against a decision of the Joint Secretary acting as revisionary authority is untenable. There is finality attached to the order which cannot be questioned by functionaries under the Act since the order is passed by the Government Union of India itself. 12. The apprehension of the petitioner that there will be discriminatory result because of the view taken by us, in as much as the functionaries under the Act wouldbe left with no judicial remedy against an erroneous order passed by the Central Government under section 35EE while an assessee would be entitled to seek judicial redress is, with respect, baseless. It is open to an assessee who feels aggrieved by an order passed by the Central Government under section 35EE to strain every nerve to challenge the same in appropriate proceedings; that is only a constitutional means of seeking redress. But that is not true in the case of an order of the Central Government passed under section 35EE which is sought to be challenged by the Central Government itself i.e., the authorities executing the Act, which is a central Act. There is an inherent impossibility or contradiction in countenancing such a view, in addition to fostering indiscipline and chaos in the administration of the Act. 13. Counsel for the respondent is right in relying on sub-sections (5) and (6) of section 35EE to point out that in case the Central Government suo motu decides to issue notice to the assessee to enhance the penalty or fine or duty and after hearing the assessee decides to drop the proceedings, no grant of any opportunity to the Commissioner of Central Excise or any other officer executing the Act is envisaged. This shows that if the Central Government is of the view that the order of the Commissioner (Appeals) is legal and proper and requires no interference (by way of enhancement of duty, fine or penalty), there is no right conferred upon the Commissioner of Central Excise to challenge the decision to drop the proceedings. If the Commissioner of Central Excise chooses to take the appeal route against the order of the Commissioner (Appeals) to the CESTAT, he may lawfully pursue his challenge right up to the Supreme Court. But if he chooses to take the revisionary route and question the legality and propriety of the order of the Commissioner (Appeals) before the Central Government under section 35EE, he must, if the decision of the Central Government goes against him, accept it as final. The section does not recognise any grievance that the Commissioner may nurse against the decision of the Central Government. In short, the Commissioner of Central Excise cannot claim to be more loyal than the King!"
(3.) It has been further held that the writ petition which has been filed by the revenue challenging its own order is not permissible.;