ORDER
S. Kalyanam, Vice-President
1. This appeal is by the department and directed against the order of the Collector of Central Excise (Appeals), Madras, dated 31.8.1988.
2. The respondent is absent and has not sent any communication for adjournment.
3. Sh. Arulsamy, the learned DR, contended that in the present case in respect of erroneous refund granted to the respondents proceedings were instituted by the Col. of Central Excise in terms of Section 35E(4), Central Excises and Salt Act, 1944 the ‘Act’ for short, for reviewing the order of the Asstt. Collector of Central Excise, Madras, on grounds of legality, propriety and correctness of the same and as per the statutory directions of the reviewing authority, an appeal was fijed before the learned adjudicating authority seeking to revise the order of the original authority. The lower authority took a view that there being a specific provision u/s 11A of the Act for recovery of the refund erroneously granted, by initiation of proceedings by issue of a show cause notice within the period of six months stipulated thereunder, in the absence of any such show cause notice issued in terms of Section 11A of the Act review proceedings in terms of Section 35E(2) of the Act cannot be initiated u/s 11A of the Act. The learned DR submitted that this view taken by the learned adjudicating authority is not sustainable in law. He further contended that the power of review is in exercise of a supervisory jurisdiction statutorily conferred on a superior authority who is empowered to call for the records of a subordinate authority to examine the order passed by him on grounds of legality, propriety and correctness and this exercise of a supervisory jurisdiction in exercise of what is popularly known as the power of review is itself in exercise of Revisional or appellate power which is substantive in character and the same cannot be whittled down and the power cannot be circumscribed by reading into it the provisions of Section 11A of the Act. The learned DR further submitted that Section 11A and the power of review conferred u/s 35E (2) both operate in the respective spheres untrampled by each other and one is not destructive or derogatory of the power conferred in the other section. The learned DR submitted that this view has been taken by this Bench in the case of CCE, Bangalore v. Mis. Raman Boards Ltd. reported in 1985 ECR 2366. The learned DR further submitted that notwithstanding the fact that a contrary view was subsequently taken by the Special Bench of CEGAT, when this identical issue came up for consideration recently before the Madras High Court in the case of Mis. Sivanandha Pipe Fittings Ltd. v. Supdt. of CE, Range-I, Hosur reported in 1994 (53) ECR 146 (Mad.) the Madras High Court following the Division Bench ruling of the Madras High Court in a similar situation in a case arising out of Tamil Nadu General Sales Tax Act dealing with the provisions of Sections 16 and 34 and also dealing with various other rulings of the Division Bench of the Madras High Court dealing with similar situation arising under the provisions of Cooperative Societies Act took a view that Section 11A and Section 35E are mutually exclusive in their scope and extent. The learned OR, therefore, submitted that the impugned order is liable to be set aside and appeal allowed.
4. We have considered the submissions made before us. The short question that arises for consideration is whether the exercise of the power of review of Col. of CE in terms of Section 35E(4) is sustainable in view of the fact that no show cause notice was issued in terms of Section 11A of the Act. We note that the Bench of this Tribunal in the case of Raman Boards Ltd. cited supra dealing with similar situation after analysing the scope of various sections and also the power of review has observed as under:
5. We have carefully considered the submissions of the parties herein. In order to understand the import of the revisional powers which a Collector of Central Excise is suo moto empowered to exercise on grounds of legality and propriety in respect of an order passed by a subordinate authority, the relevant provisions may be extracted:
35E(2) The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding, in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propreity of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order.
(3) No order shall be made under sub-section (1) or sub-section (2) after the expiry of two years from the date of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application.
The above provisions make it abundantly clear that the Collector of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any order under this Act for the purpose of satisfying himself as to the legality or propriety of such decision and may by order direct such authority to apply to the Collector (Appeals) for determination of such points arising out of the decision or as may be specified by the Collector of Central Excise in his order. This power is subject to a period of limitation of two years from the date of the decision or order of the adjudicating authority. Pursuant to an order under subsection (2) of Section 35E if the adjudicating authority or the authorised officer makes an application to the Collector (Appeals) within a period of three months from the date of communication of the order under Section 35E(2) to him, such application shall be heard by the Collector (Appeals) as if such an application were an appeal made against the decision or order of the adjudicating authority. Since under Section 35E(4) of the Act an application made by an authorised officer before the Collector (Appeals) in pursuance of an order of the Collector of Central Excise under sub-section (2) of Section 35E shall be heard as if it were an appeal against the decison or order of the adjudicating authority, the provisions of the Act regarding appeals under Sections 35 and 35A would be applicable. Section 35A deals with procedure in appeal and the second proviso to Section 35A(3) reads as under:
Provided further that where the Collector (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short levied or short paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order.
(emphasis supplied).
The Parliament in its legislative wisdom, in our opinion, has advisedly used the word ‘appellant’ in the second proviso to Section 35A of the Act extracted above. If issuance of a show cause notice within the statutory period of limitation envisaged under Section 11A were to be construed as sine quo non said a condition precedent for the very exercise of suo mo to revisional powers by a superior authority viz. the Collector of Central Excise in terms of Section 35E of the Act, the same would have been clearly expressed in Section 35A, more particularly when the second proviso to Section 35A expressly refers to the ‘appellant’ before Collector (Appeals), the time limit specified in Section 11A in relation to him and the statutory embargo on the Collector (Appeals) from passing an order requiring the appellant before him to pay any duty not levied or paid or short-paid or short-levied or erroneously refunded unless there was due compliance of Section 11A. In other words, the Collector (Appeals) as an appellate authority exercising powers in appeal under Section 35A of the Act, is statutorily precluded from passing an order requiring the appellant before him to pay any duty not levied or not paid or short-paid or short levied or erroneously refunded unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order. It should be noted in this context that in the instant case, the appellant before the Collector (Appeals), was the Assistant Collector (Legal). The second proviso to Section 35A referred to supra would refer to an appellant before the Collector (Appeals). When specific express provision relating to the applicability of the period of limitation incorporated in Section 11A of the Act is made applicable to an appellant before the Collector (Appeals) regarding payment of duty not levied or paid or short levied or short paid or erroneously refunded, the absence of any such provision fettering the powers of the Collector of Central Excise seeking to recover an erroneously refunded amount in exercise of suo mow revisional powers under Section 35E(2) of the Act and pursuing a statutory remedy in terms of Section 35E(2) read with Section 35A of the Act would make it abundantly clear that Section 35(2), (3) and (4) is neither controlled nor subject to Section 11A of the Act. Apart from it, one of the cardinal rules of interpretation of statutes is that even if a provision admits of two interpretations, the one which furthers the legislative intent should be preferred. As rightly pointed out by the learned Senior Departmental Representative, if the period of limitation in Section 11A were to control and over-ride the period of limitation in Section 35E(3), it would not only render Section 35E(3) nugatory and otiose but also inoperative and superfluous. It is a cardinal principle of interpretation of statutes that the legislature does not use meaningless language and every word used by it must be presumed to have some meaning even though the phraseology employed may sometimes be obscure or ambiguous. The words used in a statute are the primary and most reliable sources for interpreting the meaning and unless plain literal interpretation produces a manifestly absurd and unjust result which could never have been intended by the legislature, courts would not be justified in modifying the plain language of the section. Ultimately it should be the endeavour or attempt on the part of a court or a tribunal to discover the intent of the legislature from the language used by it. After all, language is only an imperfect instrument for expression of human thought and to borrow the felicitous diction of the^great jurist Lord Denning “it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity”. Section 11A and Section 35E(3) should be construed harmoniously even if there be a conflict between the two so as to provide a workable and well reasoned basis on which each might fulfil its purpose in aid of the object of the enactment. In our opinion, if the power of the Collector of Central Excise exercisable under Section 35E is construed in proper perspective as one in the nature of a judicial examination of a decision of an inferior authority to rectify any error in the order, such powers though revisional in nature, would be appellate in character and it is not without legal significance that in jurisprudence revisional jurisdiction is regarded as part and parcel of the appellate jurisdiction and such correctional jurisdiction, which can be suo moto in the instant case, cannot be whittled down unless there is an express provision or necessary intentment thereof in the statute itself.
6. Another important aspect of the issue is the significant usage of the expression “Assistant Collector” in Section 11A(2) of the Act dealing with the adjudicatory power of the Assistant Collector by way of a review. As a matter of fact when the power of an adjudicating authority to review his own orders was assailed, the Division Bench of the Delhi High Court in case of Bawa Potteries, Mehrauli v. Union of India and Anr. reported in 1992 (40) ECR 152 (Del.) : 1981 ELT 114 (Del.), while considering the scope of Rule 10, as it then existed, held that the legislature has considered it expedient to confer on the assessing authority itself a limited power of review where according to him or his successor the earlier order is erroneous, (emphasis applied). The Bench further observed:
The language of the rule clearly postulates the existence of a prior quasi-judicial determination by way of levy or duty or grant of refund or a decision not to levy duty and confers on the same authority a power of review of the earlier decision, subject to fulfilment of the conditions mentioned in the rule and subject to action for review being taken within the prescribed period of limitation.
Here, in the instant case a plain reading of Section 11A would show that a limited power of review is expressly conferred on an adjudicating authority like the Asstt. Collector.
7. The show cause notice contemplated within a statutory period under Section 11A(1) has to be followed up by adjudication by the officer designated in the section itself in Section 11 A(2) “the Assistant Collector of Central Excise”. It is nobody’s contention and by no stretch of imagination can it even be contended for that matter that the Asstt. Collector and the Collector of Central Excise are one and the same. Therefore, it is absolutely clear that an adjudicating authority like the Asstt. Collector is clothed with the power and jurisdiction to exercise what may be called a limited power of review to readjudicate the issue within a statutory period of limitation in respect of duty not levied or paid, short-levied or short paid or erroneously refunded. This limited power reviewed has been very succinctly explained in the ratio of the Bawa Potteries case referred to supra. Therefore, when the Parliament has clothed an authority like the Assistant Collector with a limited power of review to readjudicate issues in certain circumstances covered by Section 11A within a statutory period of limitation, it would be incongruous to envisage a superior authority viz. the Collector of Central Excise invested with suo moto revisional and correctional powers of jurisdiction over his subordinate authority on grounds of legality and propriety to exercise the same power in the same and identical manner as his subordinate Assistant Collector does. Such a construction would cut at the root of the correctional jurisdiction envisaged by Section 35E and lead to a very anomalous situation of subordinate officers passing illegal or improper order on the last date of limitation specified under Section 11 A, leaving a superior officer like the Collector of Central Excise invested with correctional revisional jurisdiction a sad hapless spectator, because the Collector of Central Excise cannot exercise powers of review and call for and examine the records of his subordinate authority before the subordinate authority passes any decision or order under the Act since a review can only be of an order passed and would not be able to do anything if a manifestly illegal order is passed by a subordinate authority on the last day of limitation specified in Section 11 A, if Section 11A with the period of limitation therein were to control and regulate the powers of the Collector of Central Excise. We, therefore, hold that Section 11A and Section 35E operate entirely in different fields with different objectives and purposes. Therefore, Section 11A cannot be telescoped or superimposed over Secton 35E with an over-riding effect. Thus, the Collector of Central Excise can exercise the powers of correctional jurisdiction by way of suo moto revision in terms of Section 35E(2) against an order passed by an adjudicating authority subordinate to him either in respect of an order passed after the issuance of a show cause notice within a period of six months or an order passed without the issuance of any show cause notice. The issuance or otherwise of a show cause notice is not determinative and deciding criterion of the powers of the Collector of Central Excise under Section 35E of the Act.
The Madras High Court in the case of Sivanandha Pipe Fittings Ltd. cited supra has clearly held that Sections 35E and 11A are mutually exclusive in their scope, extent and purport and resort can be had to either one or more than one of such powers depending upon the exigencies of the situation. It is further emphasised in the ratio of the Madras High Court ruling that this exercise of power under one section is not destructive or derogatory of the power conferred under the other section. A reference has been made, as rightly contended by the learned DR, in the ruling of the Madras High Court to the earlier Division Bench rulings of the Madras High Court dealing with scope of Sections 16 and 34 of the Tamil Nadu General Sales Tax Act in similar situations. The Division Bench of the Madras High Court in the case of Padmavathi v. State of Tamil Nadu reported in 1979 44 STC 446 (Mad.) while considering the scope of Sections 16 & 32 dealing with a similar situation has held that two sections are mutually exclusive and give different powers to different authorities and where it is possible to act under two provisions, the department may resort to one instead of the other. So long as the jurisdiction is exercised with respect to an order contemplated by the section, such exercise of jurisdiction cannot be characterised as erroneous exercise of jurisdiction. Therefore, in the light of the ratio of the Madras High Court extracted above which in turn is based on the earlier Division Bench ruling of the Madras High Court and also keeping in mind the view taken by the Bench in the case of Raman Boards Ltd., we find considerable force in the pleas urged by the learned DR and in this view, for the reasons stated above, we, set aside the impugned order and appeal of the department is allowed.
5. The cross objection filed is only in the nature of a counter and the same is dismissed as misconceived in law.
(Pronounced and dictated in open Court)