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TMI Blog2003 (7) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ners under nine Bills of Entry on payment of duty as provisionally assessed by the Assistant Commissioner of Customs (SVB) by enhancing the assessable value of the goods by 20% of the declared value; that the Assistant Commissioner, by order dated 14-3-97 which was passed in de novo proceedings pursuant to a remand order of the Commissioner (Appeals), accepted the declared value for assessment of the goods; that the provisional assessments were finalised accordingly as directed by the Commissioner of Customs (Import); that the appellants filed applications for refund of the excess Customs duty paid on the nine Bills of Entry; that the Deputy Commissioner of Customs concerned sanctioned the refund as per Order-in-Original dated 23-7-99 (issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed under sub-section (2) of Section 129D of the Customs Act. The review order passed by the Commissioner on 28-7-2000 was time-barred and consequently the appeal filed with the Commissioner (Appeals) by the department against the Deputy Commissioner's order was not maintainable. The learned Counsel relied on the Supreme Court's judgment in CCE v. M.M. Rubber Co. [1991 (55) E.L.T. 289 (S.C.)] and the Tribunal's decisions in the cases of Solid Containers Ltd. v. CCE [1993 (68) E.L.T. 598] and Polycoat Powders (P) Ltd. v. CCE [1998 (100) E.L.T. 172]. The Counsel also argued on the merits of the case, drawing support from case law. Vis-a-vis the main ground raised in the appeal, the learned SDR argued that the review order was not to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e note that the corresponding provision of Central Excise Act, 1944, prescribing period of limitation for review, by a Commissioner of Central Excise, of any decision or order of any adjudicating authority subordinate to him, is sub-section (3) of Section 35E of that Act, which is identically worded as above. The decisions cited by the learned Counsel have got to be considered in view of this legal position. 5. In the case of M.M. Rubber Co. (supra), the Central Board of Excise & Customs had, by order dated 11-12-1985 under sub-section (1) of Section 35E of the Central Excises & Salt Act, 1944, reviewed an order of adjudication passed on 28-11-1984 by the Collector of Central Excise, Madras dropping a demand of duty raised on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power and in the case of exercise of suo motu power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers, but persons affected are not concluded by the decision. 18. Section 35E comes under the latter category of an authority exercising its own powers under the Act. It is not correct to equate the Board, as contended by Shri Gaurishankar Murthy to one of the two parties to a quasi-judicial proceeding before the Collector and the Board's right under Section 35E to the exercise of the right of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective." 6. The above ruling was followed by the Tribunal in the case of Solid Containers and Polycoat Powders (supra). In both these cases, review orders passed by Collector of Central Excise under Section 35E(2) of the Central Excises & Salt Act beyond the period of one year [prescribed under Section 35E(3)] from the dates of orders of subordinate adjudicating officers were held to be invalid and ineffective and relief was granted to the assessees. 7. The provisions of Section 129D of the Customs Act are pari materia with those of Section 35E of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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