ORDER
Harish Chander, Member (J)
1. The Government of India had issued a review show cause notice under erstwhile Section 131(3) of the Customs Act, 1962 which stands transferred to the Tribunal in terms of provisions of Section 131 of the Customs Act, 1962 to be treated as an appeal. It is conceded that the show cause notice dated 11.2.1982 has been issued after the expiry of six months from the date of passing of the order passed by the Appellate Collector of Customs, Madras. The particulars are as under:
Sl. Appeal No. Order-in- Show cause notice Date
No. Appeal No. number
1. C/1135/82 C.25AP/50/80 F.No. 380/26/82-II- 11.2.1982
dt. 16.2.1981 Cus. II
2. C/1136/82-B2 C.25 AP/51/80 F.No. 380/27/82-II- 11.2.1982
dt. 16.2.1981 Cus. II
3. C/1137/82-B2 C.25/21/80 F.No. 380/28/82-II- 11.2.1982
dt. 20.2.1981 Cus. II
4. C/1138/82-B2 C.AP/22/80 F.No. 380/29/82-II- 11.2.1982
dt. 24.2.1981 Cus.
5. C/1139/82-B2 C.25 AP/23/80 F.No. 380/30/82-II- 11.2.1982
dt. 24.2.1981 Cus. II.
Since the issue involved is common, the above captioned five appeals are disposed of by this common order.
2. At the outset of the hearing, Shri C. L. Beri, the learned advocate who has appeared on behalf of the respondent, pleaded that the review show cause notices though have been issued under Sub-section (3) of erstwhile Section 131 of the Customs Act, 1962, in effect the same are to be treated under Sub-section (5) of erstwhile Section 131 of the Customs Act, 1962 as the respondent’s matter is of short-levy and the limitation as provided under Section 28 of the Customs Act, 1962 has to be adopted. In support of his argument, Shri Beri has referred to the following cases.
1. Associated Cement Companies Ltd. v. Union of India.
2. 1987 (27) ELT 202 : 1987 (10) ECR 209 Collector of Central Excise, New Delhi v. Fedders Lloyd Corporation Private Ltd., New Delhi.
3. 1987 (9) ETR 298 Collector of Central Excise, New Delhi v. Fedders Lloyd Corporation Ltd., New Delhi and Ors.
4. Collector of Central Excise and Customs, Guntur v. Jayalakshmi Cotton & Oil Products Pvt. Ltd.
5. 1985 ECR 1025 (Cegat) Collector of Central Excise, Bombay v. Modella Textile Industries Pvt. Ltd., Bombay.
6. Corn Products Co. (India) Ltd. and Anr. v. Union of India and Anr.
7. 1985 ECR 192 Collector of Customs, Bombay v. Bharat Vijay Mills Ltd., Kalol (N.G.) and Modi Spinning & Weaving Mills Co. Ltd.
Shri Beri pleaded that the respondent’s case is fully covered by the earlier judgments of the Tribunal and stated that the show cause notices though the same have been issued under Sub-section (3) of the erstwhile Section 131 of the Customs, the same have in effect been issued under Sub-section (5) of Section 131 of the Customs Act, 1962 and it is a case of short-levy. He has pleaded that since the review show cause notices were issued after the expiry of limitation, the appeals filed by the revenue should be dismissed.
3. Shri M.K. Sohal. the learned JDR who has appeared on behalf of the appellant, stated that the review show cause notices have to be issued under Sub-section (3) of erstwhile Section 131 of the Customs Act, 1962 and the same are within time. Shn Sohal argued that no time limit will apply in this case, as the notices were issued under Sub-section (3) of erstwhile Section 131 of the Customs Act, 1962. In support of his argument, he has referred to a judgment of the Tribunal in the case of Collector of Customs v. May and Baker (India) Ltd., Bombay, vide order No. 1153/86-B2 dated 18th November, 1986 in appeal No. 1511/81-B2, Shri Sohal has pleaded that the appeals should not be dismissed on this ground.
4. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the correct legal position Sub-section (3) and (5) of the erstwhile Section 131 of the Customs Act, 1962 are reproduced below:
(3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130.”
“(5) Where the Central Government is of opinion that any duty of customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in Section 28.
Section 28 of the Customs Act, 1962 is also reproduced below:
28. Notice for payment of duties not levied, short-levied or erroneously refunded.-(1) When any duty has not been levied or has been short-levied or erroneously refunded, the proper officer may,-
(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year;
(b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short-levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice.
A simple persual of Section 28 and erstwhile Section 131 of the Customs Act, 1962 will clearly show that where there is a case of short-levy of the customs duty, Sub-section (5) of the erstwhile Section 13l of the Customs Act, 1962 will apply, We have also gone through the review show cause notices. The same have been issued under Sub-section (3) of the erstwhile Section 131 of the Customs Act, 1962. Undoubtedly, the review show cause notices have been issued under Sub-section (3) of erstwhile Section 131 of the Customs Act. We have gone through the judgments cited by Shri Beri. The Tribunal in the case of Collector of Central Excise and Customs, Guntur v. Jayalakshmi Cotton and Oil Products Pvt. Ltd. had held as under:
Although the show cause notice has been issued by the Central Government under Section 131(3) of the Customs Act, 1962, actually there can hardly be any doubt that this is a matter pertaining to non-levy of duty as the Assistant Collector’s order which it proposes to restore, makes a demand of duty not levied on goods exported. The Appellate Collector’s order also relates to non-levy and has the effect of ordering that no duty can be demanded from the appellants on the facts of the case. The notice issued by the Central Government not only seeks to review the Appellate Order on the ground that the notices demanding duty of the appellants were proper notices but further goes on to stay the order-in-appeal which sets aside the order of the Assistant Collector and the notices. It cannot by any stretch of imagination be argued, therefore, that the matter does not relate to non-levy of duty. Although the notices have been issued by the Government under Section 131(3) of the Customs Act, 1962, it must be deemed to be actually issued under Section 131(5) of the Customs Act, 1962. Since the Order-in-Appeal was passed on 24.4.1981 and the show cause notice issued by the Central Government on 11.2.1982, it was clearly time-barred under Section 131(5) of the Customs Act, 1962.
The facts of the present case are similar to the case cited above and the judgment cited by the learned JDR in the case of Collector of Customs, Bombay v. May and Baker (India) Ltd., Bombay does not help the appellant in any way. Following the decision of the larger Bench in the case of Collector of Central Excise, New Delhi v. Fedders Lloyd Corporation Ltd., New Delhi and Others reported in 1987 (9) ETR 298 and the Delhi High Court judgment in the case of Associated Cement Companies Ltd. v. Union of India , we hold that in the present matters the review show cause notices under Sub-section (3) of erstwhile Section 131 of the Customs Act, 1962 have to be treated as review show cause notices issued under Sub-section (5) of the erstwhile Section 131 of the Customs Act, 1962. Accordingly, we hold that the review show cause notices are barred by limitation.
5. In view of our above observations, the above captioned five appeals filed by the revenue are dismissed.
Pronounced in open Court.
