1991 (10) TMI 138 - AT - Customs

Summary

Issues Involved:
1. Applicability of Section 129D of the Customs Act, 1962.
2. Time limitation for invoking Section 129D vis-a-vis Section 28 of the Customs Act, 1962.
3. Independent nature of Section 28 and Section 129D of the Customs Act.
4. Requirement of issuing a show-cause notice under Section 28.
5. Legal precedents and analogies with the Central Excises and Salt Act, 1944.

Issue-wise Detailed Analysis:

1. Applicability of Section 129D of the Customs Act, 1962:
The Revenue filed appeals under Section 129D of the Customs Act, 1962, challenging the final assessment orders which granted duty exemptions under Notification No. 166/80-Cus. The Collector (Appeals) dismissed these appeals, stating that the appropriate recourse for recovery of short-levy should have been under Section 128(i) of the Customs Act, 1962.

2. Time Limitation for Invoking Section 129D vis-a-vis Section 28 of the Customs Act, 1962:
The Revenue argued that Section 129D(2) could be invoked independently of the time limits prescribed under Section 28(1). They contended that the one-year time limit under Section 129D(3) should apply for reviewing orders made under Section 18(2). The respondents countered that Section 28(1) should prevail, and the review under Section 129D cannot circumvent the limitation period specified in Section 28(1).

3. Independent Nature of Section 28 and Section 129D of the Customs Act:
The Tribunal emphasized that Section 28 of the Customs Act is an exclusive provision for non-levy, short-levy, and erroneous refund, requiring a mandatory show-cause notice. It held that Section 28 and Section 129D operate independently. Section 28 deals specifically with recovery of duties, while Section 129D provides for the review of orders by the Collector but does not override the limitation period under Section 28.

4. Requirement of Issuing a Show-Cause Notice under Section 28:
The Tribunal reiterated the necessity of issuing a show-cause notice under Section 28 for recovery of non-levy or short-levy. It cited the Supreme Court's ruling in Gokak Patel Volkart Ltd., which held that a show-cause notice is a statutory requirement for recovery under Section 11A of the Central Excises and Salt Act, analogous to Section 28 of the Customs Act.

5. Legal Precedents and Analogies with the Central Excises and Salt Act, 1944:
The Tribunal referred to several rulings, including those of the Calcutta High Court and the Supreme Court, to support the view that Section 28 of the Customs Act is analogous to Section 11A of the Central Excises and Salt Act. It held that the provisions for recovery of duties under these sections are exclusive and cannot be circumvented by invoking review powers under Section 129D.

Conclusion:
The Tribunal upheld the Collector (Appeals)'s decision, dismissing the Revenue's appeals. It concluded that the provisions of Section 28 of the Customs Act are independent and exclusive for matters of non-levy, short-levy, and erroneous refund, requiring the issuance of a show-cause notice. The review powers under Section 129D cannot override the limitations and procedural requirements of Section 28.