1997 (8) TMI 82 - HC - Customs

Summary

Issues Involved:
1. Revision of the Order beyond the period of limitation.
2. Jurisdiction of the Collector to revise the order.
3. Classification of the product.
4. Applicability of Exemption Notification.

Detailed Analysis:

1. Revision of the Order beyond the period of limitation:
The petitioner argued that the revision of the order by the Collector was beyond the period of limitation prescribed by law. The Collector issued a notice on 30th November 1978, intending to revise the order passed by the Assistant Collector on 8th December 1977. According to Section 35A of the Central Excises and Salt Act, 1944, the time limit for revising any order is one year. The court found that the notice issued by the Collector was beyond the one-year limitation period, making the revision invalid. Furthermore, Section 11A of the Excise Act, which prescribes a six-month limitation for recovery of duty not levied or short-levied, was applicable. Since the revision notice was issued after the six-month period, it was deemed time-barred.

2. Jurisdiction of the Collector to revise the order:
The petitioner contended that the Collector had no jurisdiction to revise the order passed by the Assistant Collector on 8th December 1977 because the power to revise such orders was conferred on the Collector only from 1st July 1978. The court examined the amended Section 35A, which came into effect on 1st July 1978, and concluded that the Collector had the power to revise orders passed before this date, provided the proceedings were initiated within the prescribed limitation period. However, since the revision notice was issued beyond the six-month limitation period, the Collector lacked jurisdiction to revise the order.

3. Classification of the product:
The petitioner argued that the classification accepted by the Assistant Collector was proper and that the product in question could not be classified as plastic based on its chemical properties or trade recognition. The court did not delve deeply into this issue, as it had already determined that the revision of the order was time-barred and beyond the Collector's jurisdiction.

4. Applicability of Exemption Notification:
The petitioner also contended that even if the product fell under Item 15A(2), it was exempted by Exemption Notification No. 68/71, as amended by Notification No. 198/78. The court found it unnecessary to address this contention, given its decision on the limitation and jurisdiction issues.

Conclusion:
The court quashed the order passed by the Collector, Central Excise and Customs, Pune, dated 12th June 1980, and restored the order of the Assistant Collector, Central Excise and Customs, Aurangabad, dated 8th December 1977. The court held that the revision was beyond the period of limitation and that the Collector had no jurisdiction to revise the order. The bank guarantee submitted by the petitioner was ordered to be returned after eight weeks. The rule was made absolute, with no order as to costs.