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TMI Blog1986 (8) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on 24th April, 1981, the review show cause notice has been issued by the Central Government under Section 131(3) on- the 11th February, 1982 and was received, by the respondent on 16th February, 1982. It is submitted that under Section 131(5) of the Customs Act, any action to be taken in this regard should be within the time limit specified under Section 28 of the Customs Act, 1962. Section 28 provides for a period of 6 months, therefore, review proceedings are hit by limitation. 3. It is also submitted on behalf of the respondents that the Order-in-Review states that pending decision by the Central Government, the operation of the Order-in-Appeal is stayed. It is stated that this Order is unilateral and invalid and requires to be set aside as respondents were not given an opportunity to explain their point of view as required under principles of natural justice. 4. For the appellant Shri K.C. Sachar, JDR has pointed out that the. review show cause notice is issued not under Section 131 - (5) but under Section 131(3) which has no time limit. Section 131(3) of the Customs Act reads as under: The Central Government may of its own motion annul or modify any Order passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it purports to be, as pleaded by the learned JDR, or it is actually only under 131(5). Shri Sachar has relied on the judgement of the Allahabad High Court in the case of M/s. Trivani Sheet Glass Works Ltd. v. Union of India and others (supra) in urging that the review notice is in fact under Section 131(3) of the Customs Act and therefore not subject to any limitation. We find that the decision in Trivani Sheet Glass Works Ltd. case is based on interpretation of the then Section 36(2) of the Central Excises and Salt Act, 1944. Prior to amendment made by Central Act No.25 of 1978, , which became operative with effect from 6th June, 1978, Section. 36(2) of the Central Excises Salt Act read as under : The Central Government may, of its own notion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under Section 35 or Section 35A of this Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit; Provided that no decision or order shall be varied so as to prejudicially affect any person unless such person is given a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned show cause notice was proposed to be done, the Central Government was required to go into the question, whether there had been any short-levy or erroneous refund of duty and whether it would be required to make an order levying/enhancing duty or requiring payment of an amount erroneously refunded to the petitioner. The matter before the Allahabad High Court related to a refund claim by the petitioner but it was held that although the Central Government had issued a show cause notice to the petitioner under section 36(2) of the Act in respect of the Appellate order, it had not passed any order staying the refund which had become due under that order. No such circumstance had been brought to the notice of the Court which had the effect of inhibiting the proper officer from performing his obligation under Rule 11(3) to refund the amount due in accordance with Appellate orders within reasonable time. The Allahabad High Court decided that the fact that the Central Government was examining the propriety of the Appellate order by itself would not provide a reason which was good enough to justify the proper officer is not performing his public duty under Rule 11(3). It was added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy or non-levy was made in the notice. All that was stated, was that the Central Government wished to review the legality, correctness or propriety of the Appellate Orders. It was in view of the language that it was argued that the impugned notices were under the second proviso of Section 36(2) and therefore not barred by limitation as they were issued within a period of one year from the date of Orders of the Appellate Collector. The Delhi High Court observed as under :- While it is for the Central Government to choose its language in giving show cause notice under the first proviso to Section 36(2), the view of the Central Government has to be gathered not only from the language used in the show cause notice but also by reading the said language with the orders passed under Section 35 or 35-A which are sought to be reviewed by the orders proposed in the show cause notices. Once the notices are read with the orders passed under Section 35 or 35-A, it would be clear whether the notices are issued under the second proviso or whether they are issued under the third proviso. The language of the impugned show cause notice in the present case purports to be under the substantive par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urthermore, the Central Government, pending decision in the proceedings initiated, directed that the Order of the Appellate Collector be stayed. We thus observe that although the Order 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 or 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 notice have been issued by the Government under Section 131(3) of the Customs Act, 1962 it must be deemed to be actually issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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