JUDGMENT

Manisha Batra, J. (Oral)

Challenge in this writ petition is to order dated 23.09.2004 (Annexure P-10), passed by the Joint Secretary to the Government of India, Department of Revenue, New Delhi, i.e. respondent No.1 whereby the revision application filed by the petitioner under section 35EE of the CENTRAL EXCISE ACT , 1944 (for short 'Act, 1944') against the order dated 14.02.2003, passed by respondent No.2 had been dismissed.

2. Briefly stated the facts of the case are that the petitioner-company had manufactured malted food serial mal extract (known as DMI-70) at Nabha and had got it exported from its factory situated at Ballabhgarh after making payment of duty. It had availed credit of duty and utilized the same for clearance of other products manufactured by it. Show cause notices were issued against the petitioner by the Central Excise Department on 04.10.1995 and 07.03.1996 on the allegation that the credit taken on DM170 was irregular as no manufacturing activity was undertaken at Ballabhgarh. The petitioner filed reply to the show cause notices. However, vide order dated 01.05.1996, the Collector of the Central Excise Department upheld the stand taken by the department while holding that the petitioner was entitled to rebate of duty paid at Nabha on DMI-13. The petitioner thereafter, filed rebate claims on 17.05.1996 with the Assistant Commissioner of Excise, Patiala seeking rebate of the duty paid for an amount of Rs. 18,03,484/- in respect of exports made by it during the period of March, 1995 to September, 1995. Due to some jurisdictional problem, its rebate claim was not decided by the said authority. Deputy Commissioner, Patiala passed an order dated 24.08.2001, rejecting the claim of the petitioner for grant of rebate. The petitioner preferred an appeal against the said order before respondent No.2, who vide order dated 14.02.2003 rejected its claim.

3. It was further submitted by the petitioner that aggrieved by the order of respondent No.2, it filed an appeal before the Tribunal which was dismissed vide order dated 08.03.2004 on the ground of lack of jurisdiction. However, the tribunal specifically held that the period during which appeal had been pursued by the petitioner was not to be counted for the purpose of calculation of period of limitation as provided under Section 35EE of the Act by the revisional authority. The petitioner then filed a revision application before respondent No.1 against the order dated 14.02.2003 on 16.02.2004 and also moved a separate application seeking condonation of delay in filing revision application on account of pursuing a remedy before a wrong Forum. The said application had been dismissed by respondent No.1 vide order dated 23.09.2004.

4. The petitioner has challenged the order dated 23.09.2004 on the grounds that there was sufficient cause for it to not to file application with the revisional authority within the prescribed time limit as it was pursuing remedy before a wrong forum under a bona fide plea. It was submitted that respondent No.1 overlooked the fact that the revision filed by the petitioner had been listed before the tribunal for several dates but till 08.03.2004, no objection had been taken by the tribunal with regard to the maintainability of the revision before it. It was also submitted that since the application before respondent No.1 had been filed within a period of 10 days from the date of passing order by the tribunal therefore, there could not be any unjustified delay in filing the revision application and respondent No.1 therefore, committed an erro