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TMI Blog1990 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... involved is 1st March, 1988 to 19th May, 1988 and the show cause-cum-demand notice is dated 9th August, 1988 and was issued by the Assistant Collector and there is an allegation of misdeclaration in the show cause notice. Shri Lakshmi Kumaran pleaded that the applicants are engaged in the manufacture of aluminium wire rods falling under Chapter Heading 76 of the Schedule to the Central Excise Tariff Act, 1985 and had also filed a classification list classifying their products as aluminium wire rods falling under Heading 7604.10 dutiable at the rate of Rs. 2900.00 per metric tonne vide Notification No. 101/88-C.E., dated 1st March, 1988. He argued that the revenue has reclassified the same as Aluminium wire falling under Heading 7605.11 with effect from 1st March, 1988 and the classification list was amended accordingly. Shri Lakshmi Kumaran argued that Section 11A was amended with effect from 27th December, 1985 and where there is an allegation of misdeclaration or suppression a show cause notice has to be issued by the Collector and not by any other authority. In support of his argument, he has referred to a judgment of the Tribunal of 'C' Bench in the case of Partap Rajasthan Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved by the Tribunal that "Section 11A(1) makes a clear distinction between cases where short-levy has arisen by reason of fraud, collusion or any wilful mis-statement or suppression of facts, and cases where short-levy is due to other reasons. In the latter case, the notice may be issued by any Central Excise Officer. In the former cases, however, with the amendment, effective from 15-11-1980, by Section 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978, the notice has to be issued by the Collector. This statutory requirement does not get whittled down by the fact that the demand is made only for the normal period of 6 months and not the extended period. In this view, the show cause notice dated 1-9-1986 is incompetent and without jurisdiction and the orders following the said notice are bad on that account and have to be, and are, struck down on that score." In the matter before us, the show cause notice is dated 9th August, 1988 and the period involved is from 1st March, 1988 to 19th May, 1988. This means the period is well within the limitation period. The show cause notice has been issued by the Assistant Collector. In Para No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versely it is also to be interpreted that superfluous mentioning of the provisions of law shall not vitiate the proceedings. Hon'ble Supreme Court in the case of State of Kamataka v. Muniyalla reported in AIR 1985 SC 470 at page 471 in Para No. 3 has observed as under :- "But it is now well-settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. Here the Principal City Civil and Sessions Judge had power under S. 194 of the Criminal P.C. to make over Sessions Case No. 17/79 to the VIth Additional City Civil and Sessions Judge and the order made by him on 30lh January, 1981 was clearly within his authority and the only error was that he recited a wrong Section of the Criminal P.C. The order dated 30th January, 1981 made by the Principal City Civil and Sessions Judge must be read as an order made under S. 194 of the Criminal P.C. in so far as the direction making over Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, before the Industrial Tribunal without raising any objection as to its jurisdiction and as to its (the petitioner's) not being a party to the reference, took a chance of having a decision in its favour on merits by the Tribunal it cannot challenge its jurisdiction and is not entitled to have a writ issued when the Tribunal has decided against it." Similar were the observations of the Supreme Court in the case of Ittyavira Mathai v. Varkey Varkey and Another reported in AIR 1964 S.C. 907. Relevant extract from Para No. 8 is reproduced below :- "8. ...But it is well-settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often .been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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