ORDER
V.P. Gulati, Member (T)
1. This appeal has been filed by the Department against the order of the Collector of Central Excise (Appeals), Madras. By the impugned order the learned lower appellate authority has turned down the plea of the Revenue in the proceedings drawn under Section 35E(4) of the Central Excises & Salt Act, 1944, for recovery of refund for the period March, 1986 to August, 1986, which had been erroneously granted by the Assistant Collector of Central Excise, Madras II Division, vide his orders dated 8-3-1989 and 21-4-1989 issued from file C. No. V/84/18/2/87 and C. No. V/87/18/13/87. This application was filed by the Department with the Collector (Appeals) on 15-9-1989. The learned lower appellate authority has held that inasmuch as no show cause notice was issued under Section 11A within a period of 6 months and in the absence of any such show cause notice the recovery could not be effected through the review proceedings drawn under Section 35E (4).
2. The learned SDR for the Department pleaded that the issue is fairly covered in favour of the Department by the order of this Tribunal in the case of Apt Lab Pvt. Ltd. v. C.C.E., reported in 1993 (65) E.L.T. 393 (Tribunal). He has pleaded that in this decision the Tribunal has held that so long as the application under Section 35E (4) has been filed within the period of 6 months not withstanding that a separate notice has to be issued under Section 11A, the duty was recoverable in terms of the order passed under the proceedings under Section 35E(4).
3. The learned Consultant for the respondent pleaded that by a series of decisions of this Tribunal it now stands settled that limitation under Section 11A will have to apply wherever any recovery has to be made and for that a notice under Section 11A will have to be issued notwithstanding that the application under Section 35E(4) for setting aside the order of refund has been filed within 6 months. In this connection he cited the decisions in the cases of C.C.E. v. Universal Radiators Ltd. [1988 (37) E.L.T. 222 (Trbunal.)] and Sree Digvijay Cement Co. Ltd. v. C.C.E. [1991 (52) E.L.T. 631 (Tribunal)].
4. We observe that the proceedings under Section 35E(4) are provided for in the statute to rectify any errors, mistakes or instances of miscarriage of justice or errors in law in the orders of the lower authorities by their supervisory authorities. In the nature of things mistakes can be detected only after a lapse of time and that is why for the purpose of proceedings which are rectificatory and corrective in nature longer time periods have been provided under Section 35E(4). In the present case it is not in dispute that the application for recovery and setting aside the order of the lower authority in regard to the disputed amount for the relevant period was made within 6 months of the order of refund. The proceedings under Section 35E(4) are substantive part of the statute and a meaningful interpretation has to be given to the provisions of this Section to effectuate the purpose for which this provision has been made. A quasi-judicial authority at the lower level, who has passed the order, cannot be coerced into issuing a show cause notice in case his supervisory authority feels that the order passed by the lower authority is wrong and the only remedy available to the authorities is by this substantive provision of Section 35E(4) under which such authorities can order the lower authority to file an application on the grounds communicated by the said supervisory authority. Inasmuch as in the present case the application was filed within 6 months, the requirements of limitation for recovery as provided under Section 11A stand satisfied and we find no need for another notice to be issued under Section 11A and the application itself is to be taken for the purpose of recovery of the refund wrongly granted. In the above view of the matter we hold that the learned lower appellate authority was in error in having dismissed the Department’s application and we, therefore, direct the learned lower appellate authority to decide the matter afresh on merits notwithstanding the non-issue of the notice under Section 11A. The appeal is, therefore, allowed by remand.