1990 (5) TMI 40 - SC - Customs

Whether the show cause notice was barred by limitation and hence, the Government had no power to annul the Appellate Collector s Order under Section 131(3) of the Act? Held that - The limitation prescribed by Section 28 is applicable when under sub-section (5) of Section 131 the Government seeks to annul or modify orders other than those passed under Sections 128 and 130. It is not applicable to the action taken under sub-section (3) for annulling or modifying orders passed under Sections 128 and 130. Since in the present case the impugned show-cause notice is issued to annul/modify the order passed by the Appellate Customs under Section 128, it will have to be held that it is not barred by limitation. Appeal dismissed.

Summary

Issues Involved:
1. Classification of imported goods under the correct heading of the Customs Tariff Act, 1975.
2. Whether the show-cause notice issued by the Central Government was barred by limitation under Section 131(3) of the Customs Act, 1962.

Detailed Analysis:

1. Classification of Imported Goods:
The appellant imported Top Line Tube Winder Endless Belts valued at Rs. 31,101/- from the United Kingdom under a Bill of Entry dated 6-8-1979. The goods were initially assessed to duty under Heading 40.05/16(3) at 40% plus countervailing duty at 25% under Item 16-A(4) of the Customs Tariff Act, 1975. The appellant contended that the goods should be classified under Heading 59.16/17 without countervailing duty and filed for a refund of the excess duty charged. The Assistant Collector rejected this claim on 12-10-1979. However, on appeal, the Appellate Collector of Customs on 2-5-1981 classified the goods under Heading 59.16/17, allowing the appeal and the consequential relief.

2. Limitation of Show-Cause Notice:
The Central Government issued a show-cause notice on 21-11-1981 under Section 131(3) of the Customs Act, asking why the goods should not be classified under Heading 39.07, which attracted duty at 100% ad valorem, and why the Appellate Collector's order should not be annulled. The appellant argued that the show-cause notice was barred by limitation as per Section 131(5) read with Section 28, which prescribes a six-month limitation period from the date of short-levy or from the date of the appellate order. The Tribunal dismissed the appeal, holding that the notice was within time and that the assessment under Heading 39.07 was proper.

The Supreme Court examined whether the limitation under Section 28 applied to the Central Government's action under Section 131(3). It was held that the limitation laid down in Section 28 does not apply to actions taken by the Government under Section 131(3). The Court referred to Geep Flashlight Industries Ltd. v. Union of India, stating that Section 131(5) speaks of limitation only with regard to non-levy or short-levy, not for the revision by the Central Government to annul or modify any order. The relevant date for erroneous refund is the date of actual refund, and since no refund had been made to the appellant, the limitation did not apply.

Further, the Court clarified that sub-section (3) of Section 131 applies only to orders passed under Sections 128 and 130, and not to orders by the original assessing authority. Sub-section (5) applies to actions against the original assessing authority's orders, covering non-levy, short-levy, or refund cases. Thus, the limitation period under Section 28 is relevant for actions under sub-section (5), not for annulment or modification under sub-section (3).

Conclusion:
The Supreme Court concluded that the limitation prescribed by Section 28 is applicable when the Government seeks to annul or modify orders other than those passed under Sections 128 and 130. Since the show-cause notice was issued to annul/modify the order passed by the Appellate Customs under Section 128, it was not barred by limitation. Consequently, the appeal was dismissed with costs.

Separate Judgment (Punchhi, J.):
Punchhi, J. dissented, arguing that the Central Government violated the limitation bar while exercising suo moto revisional powers under Section 131. He emphasized that sub-sections (3) and (5) of Section 131 should not be read in isolation, and the Central Government's power to annul or modify orders under Section 131(3) should be exercised within the time limit specified in Section 28. He concluded that the appeal should be allowed, reviving the original assessment order dated 6-8-1979 and the Assistant Collector's order dated 12-10-1979, setting aside the Appellate Collector's order dated 2-5-1981.