ORDER
S.B. Majmudar, C.J.
1. In this reference at the instance of the Assessee the following question has been referred to us by the Customs Excise & Gold (Control), Appellate Tribunal, South Regional Bench at Madras for our opinion :
“Whether the first notice was within the jurisdiction of those Officers and consequently whether the Assistant Collector’s notice was barred by time ?”
A few relevant facts leading to this reference may be noted at the outset. The Assessee M/s. Devilog Systems India, functioning at Bangalore imported raw materials and components/parts for 45 paper copier machinery vide Bill of Entry No. 30/83, dated 17-8-1983 and 47/83 under the Projects Imports vide Customs Tariff Heading 84.66 and thus availed of concessional rate of duty. The Assessee paid 40% of Customs duty and 20% of Auxiliary duty with the exemption of additional duty vide Notification No. 268/Cus., dated 2-8-1976. It is not in dispute between the parties that aforesaid goods were imported by the Assessee at Bangalore Air Port. It appears that Assistant Collector (IAD) Madras while auditing the working of Customs Office at Bangalore allegedly detected that the custom duty paid by the Assessee was short-levied as the Custom Tariff Heading 84.66 would not apply to the goods in question which were imported by the Assessee under the aforesaid two bills. The two notices in terms of Section 28(1) of the Customs Act were, therefore, issued by the Assistant Collector (IAD) Madras. In the notice dated 10-2-1984 it was alleged that the customs duty amounting to Rs. 3,06,468/- was short-levied or not levied while in the notice dated 28-5-1984 it was alleged that the customs duty of Rs. 6 lakhs was not levied or short-levied. Both these notices were based on the following reasons :-
(1) Goods are not covered by any Project Contract;
(2) No stamp found in the Bill of Entry for collection of duty amount.
Before the importer could show cause to these notices, he was served with two more notices both dated 27-9-1984 issued by the Superintendent of Central Excise (ICD) Bangalore. They were in continuation of the earlier notices dated 10-2-1984 and 28-5-1984 respectively. The said two notices appear to have been issued by the Assistant Collector of Customs, Inland Container Depot (‘ICD’), Cantonment Railway Station, Bangalore – 46. The notices stated that they are being issued in continuation of the earlier notices dated 10-2-1984 and 28th May, 1984 issued by the Internal Audit Department (‘IAD’), Madras. It has been stated in the said notices that in one case customs duty amounting to Rs. 2,46,694.43 was not levied/short-levied and in another case there was short-levy/non-levy of customs duty amounting to Rs. 3,06,580.86 in respect of the consignment referred to in the notice for the reasons mentioned in the said notices. The reasons indicated in the notices are arrayed as under :-
“(i) Imported items are not eligible for assessment under Heading 84.66 as they are utilised in assembly of plain Paper Copier and subsequently sold as such. Assembly of Plain Paper Copier cannot be construed as setting up of a plant. As such imported items are now classified under different heading of the Schedule I to Customs Tariff Act, 1975 and appropriate duty charged as shown in the work sheet enclosed to the Demand notice.
(ii) Landing charges at 0.64% were not added at the time of original assessment to arrive at the assessable value. Same is now included to CIF Value to arrive at Assessable value.”
The notice further called upon the Assessee to show cause within 15 days to the Assistant Collector of Customs, Inland Container of Customs, I.C.D., Cantonment Railway Station, Bangalore why the amount should not be paid by them. The Assessee replied to the notices and contended that the notices were time-barred and that earlier the Assessee was allowed facility of lower rate assessment for project import. The Assistant Collector of Customs, Bangalore by his order dated 30th April, 1994 observed that he did not find any reason to accept the applicant’s contention that the notices were time-barred and he ordered the Assessee to pay a sum of Rs. 4,50,000/- by way of interim payment and the balance amount of duty payable, if any, would be communicated by a separate order and the petitioner shall bay it. An appeal was filed against that order before the Collector of Customs (Appeals), Customs House, Madras, who by his order dated 18th November, 1985 allowed the appeal by holding that the order originally appealed against was one legally not sustainable and, therefore, quashed the notices and allowed the appeal. In view of the allowing of the appeal on the question of legality of the notices, he did not go into the merits of the case. The department carried the matter before the Tribunal. The Tribunal by its order dated 21st November, 1986 remanded the case to the Collector (Appeals) after holding that the notices were valid and, therefore, the further questions, viz., (i) If the demand notices were valid, whether there is any definite finding that the imports made are not covered by the Heading 84.66 of the Customs Tariff Act; and (ii) whether passing of the interim order by the Assistant Collector confirming a sum of Rs. 4,50,000/- could be held to be legally sound, are to be decided by the Assistant Collector of Customs, Bangalore. It is, thereafter, that a reference application was moved by the Assessee under Section 130 of the Customs Act requesting the Tribunal to refer the two questions of law for opinion of this court. That application was earlier rejected by the Tribunal but the Assessee’s application under Section 130(3) of the Customs Act (for short ‘the Act’) before this court succeeded and the Tribunal was directed to refer the aforementioned question to this court for opinion. That is how the aforesaid question has been referred to this court for our opinion.
2. The referred question would require consideration of the following two points :
(i) Whether the notices issued by the Assistant Collector of Customs, Internal Audit Department, Madras dated 10-2-1984 and 28-5-1984 were legal and valid ?
(ii) If these notices are not legal and valid, whether the subsequent notices dated 27-9-1984 were barred by limitation ?
We have heard learned counsel for the Assessee and the learned Standing Counsel for the revenue on these two points.
3. The learned counsel for the Assessee submitted that the notices issued by the Assistant Collector of Customs, I.A.D., Madras were ex-facie incompetent as that officer was concerned only with the auditing work of the Bangalore Office and the said officer had no authority to issue any such notice in connection with the imports at Bangalore as he is not the ‘proper officer’ as defined under Section 28 of the Act.
On the second issue it was submitted by Assessee that if it is held that the notices date 10-2-1984 and 28-5-1984 were incompetent the second set of notices dated 27-9-1984 would obviously become time-barred because they were in continuation of the earlier notices and they were admittedly issued beyond six months of the date of relevant report and it was nowhere contended or whispered that any duty has not been levied or has been short-levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer, or the agent or employee of the importer, so as to elongate the period within which the notice has to be served to five years, as provided in the proviso to Section 28(1) of the Act.
4. Refuting this contention, learned Standing Counsel for the Revenue submitted on the first issue that the Assistant Collector of Customs, I.A.D. Madras is a proper officer to issue notice under Section 28 of the Act as he has been assigned the function of performing an act to be performed under the Act by the Collector of Customs. The Tribunal, while rejecting the application of the petitioner for reference, had held that the work of auditing the imports at Bangalore was entrusted to Madras office and, therefore, that officer would be certainly a proper officer for issuing such notices and in the notice itself it was clearly mentioned that the assessee had to show cause to the Assistant Controller of Customs, I.C.D., Bangalore as to why the amounts specified in the notice should not be paid by him. Therefore, there was nothing wrong in the notice issued under Section 28 calling upon the Assessee to show cause to the proper officer namely the adjudicating officer. Once it is so held, he submitted, the order of remand as passed by the Tribunal cannot be found fault with from any angle.
On the second issue regarding the period of limitation under Section 28(1) of the Act, learned Standing Counsel for the Revenue contended that the proviso to sub-section (1) of Section 28 provides for extension of the period of limitation to five years for the purpose of issuing notice under Section 28 in certain cases and such extension would depend upon the facts established during the course of the adjudication proceedings and sub-section (1) of Section 28 nowhere requires that in the notices so issued it must be expressly mentioned that any duty has not been levied or has been short-levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or their agent or their employee. The factum of non-payment of levy or short-payment or erroneous refund has to be alleged and proved by the department during the adjudication proceedings and if in adjudication proceedings it is ultimately found that the non-levy or short-levy of duty was on account of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter then the period for issuance of notice would extend to five years. But if it is found to the contrary, the notices issued under Section 28 of the Act would become time-barred. That stage has not yet arrived and the Tribunal has already remanded the matter for decision on merits and the Collector of Customs has to decide on this issue. It cannot at this stage be said as a necessary corollary to the conclusion on the first point that the second set of notices would also by themselves become time-barred in the absence of a clear finding on these points.
5. In the light of the aforesaid rival contentions, we now proceed to deal with these two points.
6. Point No. 1 :-
So far as the first point is concerned Section 28(1) of the Act which is relevant for our purpose requires to be noted in extenso. It is extracted as under :
“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 an 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 :
Provided that where any duty has not been levied or has been short-levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter, or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words ‘one year’ and ‘six months’ the words ‘five years’ were submitted.”
A mere look at the said provision goes to show that the ‘proper officer’ being subjectively satisfied, on whatever material that may be with him at that stage, that a custom duty has not been levied or short-levied or erroneously refunded on an 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 and in all other cases within six months from the relevant date, cause service of notice on the person chargeable requiring him to show cause why he should not pay the amount specified in the notice. Therefore, in the first place, the notices issued on 10-2-1984 and 28-5-1984 from the office of Assistant Controller of Customs, I.A.D., Madras has to be shown to have been issued by ‘proper officer’. Now it is true as the learned Standing Counsel for the revenue has contended that the proper officer would get the meaning assigned to it by Section 2(34) of the Act. Sub-section 34 of Section 2 defines ‘proper officer’ as :-
“‘proper officer’ in relation to any functions to be performed under this Act means the officer of customs who is assigned those functions by the Board or the Collector of Customs;”
Our attention was invited by learned Standing Counsel for revenue to a notification dated 14th May, 1963 issued by the Central Board of Revenue. The said notification reads :-
“The Central Board of Revenue hereby directs that the following amendment shall be made in the order dated the 1st February, 1963 regarding the appointment of proper officers for purposes of sub-section (1) of Section 28 of the Customs Act, 1962 :-
In Item (i), for the words –
“officers of and above the rank of Assistant Collector of Customs”,
substitute :-
“officers of and above the rank of Principal Appraiser”.
Relying on this notification of the Board of Revenue it was submitted that in relation to the functions to be performed under Section 28 of the Act, the Board has assigned these functions to customs officers up to the tank of Principal Appraisers. Now it must be noted that the said notification substitutes the words contained in the original notification dated 1st February, 1963 which deals with the appointment of proper offices for the purpose of discharging the functions under Section 28(1) of the Act. The question now arises is as to what was the scope and ambit of notification dated 1-2-1963 and how it tried to empower the concerned officers of the customs for the purposes of Section 28(1) ? So far as that question is concerned unfortunately nothing more could be pointed out by learned counsel for the respondent as inspite of his best efforts he could not procure the notification of 1st February, 1963. Learned Standing Counsel pointed out to us, in a helpless manner, that the respondents have not co-operated with him in supplying him with the copy of the parent notification.
7. Be that as it may, even in the light of the aforesaid notification all that can be gathered is that instead of the Assistant Collector of Customs now even the Principal Appraisers could act as proper officers. But, still, the moot question remains whether he could be the proper officer for the concerned imports regarding which action has to be taken for non-levy and short-levy under Section 28(1) of the Act. So far as that question is concerned the answer is supplied by the section itself. A close look at the section shows that for a proper action under Section 28(1) the concerned officer must be in a position to find out whether there was non-levy, short-levy or erroneous refund. While issuing such notice the proper officer must be not a position to compute the extent of short-levy, non-levy or erroneous refund and that amount has to be specified in the notice. Therefore, he must be an officer who must have jurisdiction to compute the amount because the moment the amount is mentioned in the notice in the ultimate adjudication proceedings the concerned Collector should determine the amount due from such person but it should not be in excess of the amount specified in the notice meaning thereby the amount so mentioned in the notice acts as a ceiling beyond which even the adjudicating officer cannot (sic) while fixing the liability. It, therefore, stands to reason that proper officer must be an officer who must be functioning within the jurisdictional Collectorate where the import in question has been effected. Otherwise an anomalous situation would follow. The submission of learned counsel for the department is that any officer upto the rank of Principal Appraiser stationed anywhere in India can issue notice under Section 28(1) of the Act to any importer who may have imported articles attracting customs duty in any part of India. Accordingly even if such imports are made at Indira Gandhi Airport, New Delhi, notice can be issued by the Customs Officer at Madras. This is a little too far-fetched. It would in fact affect the very scheme of the Act. It cannot be forgotten that the object of issuing notice under Section 28(1) is to ensure that any evasion in the payment of customs duty is made good by the importer concerned. It is impossible and impractical to assume that an officer at Madras could effectively reckon the non-levy, short leavy or erroneous refund in respect of any import made at New Delhi. Therefore, the extreme contention canvassed by learned counsel for the revenue that any officer at Madras could issue such notices to any importer in any part of India and the jurisdictional Collector would be bound by such notice and he has to act on it, cannot be appreciated. Therefore, the notification issued on 14th May, 1963 will have to be held to mean that authorised officers working under the jurisdictional collectorate within whose jurisdiction the goods are imported can issue such notice and it is not necessary that only the Assistant Collector of Customs should issue such notice.
8. It was then contended by learned counsel for revenue that in any case the Madras Collectorate is entrusted with the work of auditing the imports at Bangalore and once in the audit it came out that there was a case of short-levy, non-levy or erroneous refund of duty collected, then the audit staff at Madras becomes competent to work as ‘proper officers’ for issuing the notice under Section 28(1) of the Act. It must be kept in view that for the purposes of auditing any other office of a nearby collectorate Madras staff may have been given the power of audit but so far as the adjudication machinery is concerned it has to be (sic) by the concerned Assistant Collector within whose local jurisdiction the imports were made. Learned Standing Counsel for the revenue submitted that in this case the goods arrived by ship at Madras and, thereafter, they were cleared at Bangalore, for home consumption and, therefore, it cannot be said that the goods were imported for home consumption at Bangalore and that the audit officers at Madras were total strangers to the imports in question and were incompetent to issue a valid notice under Section 28(1) of the Act. This argument of learned Standing Counsel would have required closer scrutiny and perhaps could have withstood the test for the purposes of issuing a valid notice under Section 28(1) if we were apprised of the fact as to whether the Board of Revenue while issuing the parent notification of 1st February, 1963 had clearly earmarked the jurisdiction of audit wing working at Madras as ‘proper officers’ for the purposes of issuing a valid notice under Section 28(1) so far as the imports at Bangalore are concerned. As that type of evidence is not brought before us, we are left guessing on this point. If the Madras audit wing while auditing the accounts of the Bangalore office had found anything calling for its interference under Section 28(1), the proper officer working in the jurisdictional collectorate at Bangalore should have been instructed to issue the notice under Section 28(1). But that has not been done in this case and the audit department at Madras had taken upon itself the job of issuing the notice. It is true that the man who issued the notice is the Assistant Collector of Customs. But, still, the moot question remains whether he could have issued that notice in the peculiar facts of this case.
9. In this context it would be useful to refer to Section 47 of the Act which governs the clearance of goods imported for home consumption. The said section reads :-
“Clearance of goods for home consumption :-
Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.”
Learned Standing Counsel for the department fairly submitted that for the purposes of Section 47 the ‘proper officer’ would be the Assistant Collector of Customs, Bangalore. But according to him, for Section 28(1) it can be different. In our view on the facts of the present case, especially in the light of the absence of notification dated 1-2-1963, we cannot hold that the audit wing at Madras is competent to issue notice under Section 28(1) of the Act. Merely because the Madras audit office is given the power to audit the accounts of Bangalore office, it cannot be said that they are also competent to issue notice under Section 28(1) of the Act, more so when there is no material on record to show that they are competent to do so. Consequently, so far as the first point is concerned, on the facts of the present case it has to be held in favour of Assessee and against the revenue that the notices dated 10th February, 1994 and 28th May, 1994 were not issued by the ‘proper officer’ attached to the jurisdictional Collectorate at Bangalore where the goods were imported and are, therefore, invalid.
Point No. 2 :-
10. That takes us to the consideration of point No. 2. So far as this point is concerned it is no doubt true that the subsequent notices which are issued on 27-9-1984 are issued by the Superintendent of Customs, I.C.D., Bangalore for the Assistant Collector of Customs, Bangalore. It cannot be disputed and it was not disputed that he is a ‘proper officer’ for the purposes of issuing notice under Section 28(1). These notices were, however, in continuation of the notice issued under Section 28(1) by the Assistant Collector of Customs (IAD), Madras. That aspect cannot make any difference for the simple reason that even though the earlier notices were treated to be incompetent the words, ‘in continuation of the notice’ would only mean that the contents of those notices are relied upon for the purposes of notice under Section 28(1) issued admittedly by the proper officer. However, the point for consideration is whether the notices issued by the Assistant Collector of Customs, Bangalore were time-barred. Admittedly, the notices have been issued six months after the relevant date viz. the date of payment of customs duty at Bangalore. The Assessee had paid duty on 20-8-1983 and 3-12-1983 for the concerned two consignments. Ex-facie they are issued six months after the payment of duty by the Assessee. The moot question, however, remains whether the larger period of 5 years would be available to the revenue as provided for in the proviso to Section 28(1) of the Act. Learned counsel for the Assessee submitted that the larger period under the proviso would be available only if it is alleged in the notices or atleast whispered that there has been short-levy or no-levy or any erroneous refund by reason of collusion or any wilful mis-statement or suppression of facts by the importer while the goods were cleared for home consumption at Bangalore. It is no doubt true that the notices do not make mention of any collusion, wilful mis-statement or suppression of facts by the importer. It is also true that the Collector, Appeals, has noted that the notices do not invoke the proviso by making any reference to it. However, the question is whether in the absence of any express mention on these aspects by the notices themselves, the revenue could invoke the larger period.
11. Now it has to be kept in view that Section 28(1) of the Act requires the proper officer to issue such a notice provided there has been no-levy, short-levy or erroneous refund to the satisfaction of the proper officer. These are conditions precedent to the issuance of such a notice. Unless the officer concerned is so satisfied such a notice cannot be issued. But the section nowhere lays down that in the notice itself it mist be further stated, if the department has to invoke the larger period of limitation available to it under the proviso to Section 28(1), that the non-levy, short-levy or erroneous refund was on account of collusion, wilful mis-statement or suppression of facts by the importer. It cannot be gain-said in this case that the notices issued on 27-9-1984 were issued beyond six months of the relevant date. By the time the notices were issued the period of six months was over. Therefore, unless the revenue could have impliedly invoked the larger period of limitation, such a notice could not have been issued. But, that apart, the section nowhere lays down that an express reference has to be made to the collusion or wilful mis-statement or suppression of fact indulged in by the importer in order to evade or reduce the liability of import duty. If the revenue is able to establish in the adjudication proceedings the collusion or wilful mis-statement or suppression of facts indulged-in by the importer than only the larger period of 5 years invoked by the revenue could be held to be proper but otherwise not. Failure to establish the above factum would lead to the automatic discharge of the notice. But that again depends on investigation of a question of fact at the adjudication stage. The notices issued in this case cannot be nipped in the bud only on the ground that they do not express anything about the willful mis-statement or suppression of fact or collusion. However, in this connection, we must refer to certain decisions to which learned counsel for Assessee invited our attention.
12. The learned counsel drew out attention to the decision of the Bombay High Court reported in Tata Engineering & Locomotive Company Ltd. v. Union of India, 1991 (52) E.L.T. 500. In paragraph 6 of the said judgment it has been in terms held :-
“It is not the claim of the department and none of the show cause notices even whisper about short-levied duty by reason of fraud, collusion or any wilful mis-statement or suppression of facts by the company. It is, therefore, obvious that five show cause notices which are in respect of period covered from January 1, 1980 and ending with March 31, 1981 are barred by limitation. These five notices are issued between February 28, 1985 and March 31, 1985 i.e. long after the period of six months from the relevant date had expired. Consequently, the same are required to be struck down.”
He also invited our attention to the decision of Supreme Court in C.I.T. v. Kurban Hussain Ibrahim Ji Mithiborwala, . The said decision dealt with the Income-tax Officer’s jurisdiction to reopen an assessment under Section 34. In the aforesaid decision, Supreme Court held that unless a valid notice is issued under Section 34 the Income-tax Officer would not get jurisdiction to revise the assessment order. There cannot be any dispute on this proposition. Learned counsel also took us through the decision in Union of India v. Madhumilan Syntax Private Limited, of the decision Supreme Court speaking through Kania, J., as he then was, considered the legality of the notice under Section 11A of the Central Excise Act, 1944. The notice before the Supreme Court ran to the following effect :-
“And whereas the Assistant Collector Central Excises, Ujjain under his letter C.N. V(18) III/I/1/83/1371-1374 dated 9th Feb., 1984 has modified approval of the classification lists of the party and has directed that the short-levied should be quantified by the Inspector, Central Excises, Biaora/Superintendent Central Excises, Ujjain and confirmation or otherwise of such short-levied and recoveries if any would be ordered by him (Assistant Collector, Central Excises, Division Ujjain) after following the prescribed procedure.
Therefore, in accordance with the said order of the Assistant Collector, Central Excises Division, Ujjain, you are called upon show cause to the Assistant Collector, Central Excises, Ujjain within 10 days of the receipt of this show cause notice as to why the short levies of Rs. 26,47,749.79 should not be recovered from you, under Section 11A of the Central Excises and Salt Act, 1944.”
Considering this notice, Supreme Court held that the notice set out an established fact that the classification lists submitted by the petitioner had been modified by the Assistant Collector, Central Excises, Ujjain and the only matter with respect to which the petitioners were asked to show cause was with regard to the quantification of the amount of short-levy and consequently, the amount which was liable to be recovered from the petitioner No. 1. Having thus held, the Supreme Court struck down the notice to the extent to which it sought to cover the period beyond six months as the notice under Section 11A of the Central Excises Act can relate only to a period of six months prior to the issue of notice. In view of the aforesaid decision of the Supreme Court one thing is certain i.e. if a larger period of limitation has to be invoked by revenue, the notice must contain basis for proceeding under in proviso to Section Central Excise of the Act. It is not as if the larger period could be invoked by the revenue even without any basis. In view of the settled position, therefore, we have to see whether the notice in the present case contained the germ or basis for such action or it is devoid of the same. Learned counsel for the Assessee was right in saying that in the absence of any such basis the notice would become invalid but on the contrary if there was some basis for such allegation then the notice could be said to have whispered about the same as held by the Bombay High Court.
13. If we turn to the notices issued on 27-9-1984 we find that mention is made therein that the items were cleared under 84.66 stating that the imported goods were to be utilised for setting-up of a plant while in fact it was found that they were utilised in assembling a plain paper copier and subsequently sold as such. Therefore, the representation made by the Assessee at the time of clearing the goods was found to be a wrong representation or a mis-statement which was obviously made to evade payment of 100% duty payable on such goods. In this connection it is necessary to refer to Entry 84.66 of the Customs Tariff which applied at the relevant time. It covered all items of machinery, including prime-movers (b) instruments, apparatus and appliances, (c) Control gear and transmission equipment, (d) auxiliary equipment, as well as all components or raw materials for the manufacture of the aforesaid items required for setting up of a unit. The allegations in the notice are to the effect that though the raw material imported was utilised in assembly of plain paper copier and subsequently sold as such, the importer had got it cleared under tariff Heading 84.66 at a lower rate of duty implying thereby (sic) by making a false representation that they were meant to set-up a plant. It must, therefore, be held that on the peculiar wordings of this notice there is germ or basis for indicating that the importer had wilfully misstated or suppressed facts at the relevant time. Therefore, this is not a case in which the notice can be said to be totally devoid of such material allegations for invoking proviso to Section Central Excise of the Act. Hence, the aforesaid decision to which our attention was invited by the learned counsel for the Assessee can be of no avail to him. It would of course be too premature to say at this stage whether the notices dated 27-9-1984 were barred by limitation or not. Pursuant to the impugned notices in the remanded proceedings, when the adjudication taken place if it is found on evidence that the revenue is not in a position to substantiate its case that at the time of concerned clearance for home consumption at Bangalore the importer had indulged in any wilfull mis-statement or suppression of facts, then obviously the notices would become time-barred and the adjudication proceedings also would become time-barred. If on the other hand the revenue is able to show to the contrary and prove on the evidence on record that the concerned clearance were made on account of wilful mis-statement or suppression of facts by the importer then only the larger period of 5 years would be available to sustain these notices under Section Central Excise of the Act. These are all, questions of facts which are still to be decided and, therefore, it would be too premature for us to say anything in connection with the question whether the notices dated 27-9-1994 were barred by limitation or not. The second question is, therefore, answered by holding that it is too premature at this stage to decide whether the notices were time-barred or not. It would depend upon the ultimate finding to which the adjudication authority would reach on the evidence available before it. The Point No. 2 is answered accordingly.
14. We make it clear that whatever we have observed while considering Point No. 2 is only for the purpose of this reference and would not come in the way of adjudicating authority in deciding the adjudication proceedings not only on merits but also on the question whether the notices dated 27-9-1994 are time-barred or not. The reference question is answered by holding that the first set of notices were without jurisdiction but question whether Assistant Collector’s notice was barred by time or not is kept open at this stage. Answer to it will depend upon the evidence to be led in adjudication proceedings as indicated in this judgment. The Tribunal is, accordingly, directed to modify its remand order in the light of the answer given by us.
15. The reference is, accordingly, disposed of.