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TMI Blog1984 (8) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the orders passed by the Assistant Collector of Customs, Bombay claiming that they were liable to payment of lower rate of duty. The Collector by his consolidated order dispatched on 5-4-1980 accepted the appellants plea and partly allowed the respondents, appeals. Government of India, Ministry of Finance, Department of Revenue purporting to act under Section 131(3) of the Customs Act, 1962 (hereinafter the Act) issued notices dated 13-8-1981 to the present respondents and also to M/s. Thomson Press calling upon them to show cause why findings of the appellate authority be not set aside or modified and such order as the Government deem fit be not passed (a copy of the show cause notice is not available in the file of M/s. Modi Spinning and Weaving Mills, but the same is available in the case of M/s. Bharat Vijay Mills). In the case of M/s. Thomson Press, it was earlier given out that the show cause notice was wrongly issued and the appeal has been disposed of accordingly. During arguments, it was given out that in the case of M/s. Modi Spinning Mills no duty has been paid by this respondent and that this respondent had executed a bond to satisfy the demand of duty whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Narain, learned Advocate for M/s. Modi Spinning Weaving Mills Co. He however submitted a new argument in support of the plea that the Show Cause Notice was time-barred. The argument is that Section 131 of the Customs Act, 1962 no more exist in the Statute Book, as a completely new chapter has been substituted in place of the old chapter. The present proceedings are an appeal before the Tribunal and the time limit provided for an appeal would be applicable to the show cause notice. The time-limit is 3 months and this would be applicable to the show cause notice. The show cause notice is therefore completely time-barred. He however added that it was open to the Tribunal to condone the delay in issue of show cause notice which is now an appeal before the Tribunal, having regard to the circumstances of the case. His argument thus in short is that the time-limit provided for an appeal under sub-section (3) of Section 129A of the Customs Act, 1962 as substituted by Finance Act, 1980 should be retrospectively applied to the present show cause notice. In support of his argument, Sh. M.A. Rangaswamy, learned Advocate relied on Amin Chand Pyara Lal v. Collector of Central Excise, Chandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f as an appeal presented before it. Sh. Rangaswamy s argument overlooks the provision contained in subsection (2) of Section 131-B, which provides that every proceeding which is pending immediately before the appointed day before the Central Government under Section 131 as it stood immediately before the day and any matter arising out of or connected with such proceedings and which is so pending shall stand transferred on that day to the appellate Tribunal and the Appellate Tribunal may proceed with such proceedings or matter from the stage on which it was on that day as if such proceeding or matter were an appeal filed before it. Having regard to these express words about the Appellate Tribunal proceeding with such proceedings or matters from the stage at which it was on that day i.e. 11-10-1982 before the Central Government, there is no question of applying retrospectively the limitation provided for an appeal in sub-section (3) of Sec. 129A of the Customs Act, 1962. We do not accept Sh. Ramgaswamy s argument. 7. Taking up first the case of M/s. Bharat Vijay Mills, admitted position is that this appellant, had deposited the duty demanded and the Appellate order passed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les made thereunder cannot also be accepted because even though in Section 12 of the Customs Act the word collection may not have been used, we find that the Act makes elaborate provision for assessment and collection of duty. To us it appears that for the purposes of sub-section (5) of Section 131 of the Customs Act, 1962 as it then existed the words not levied or short levied should be interpreted to mean nil duty assessment or short assessment of duty excluding however a case of erroneous refund. Thus viewed, there can be no doubt that the order which is sought to be revised would be clearly a case of short-levy because there is no dispute that there is an order of assessment under Section 17 of Customs Act and this would result in short duty being collected from the respondent M/s. Modi Spinning Weaving Mills. It is immaterial whether the assessment to duty is in respect of goods entered for home consumption under Section 46 or for warehousing under Section 68 of the Customs Act. Assessment under the Customs Act [vide S.2(2)] includes provisional assessment, reassessment and any order of assessment in which duty assessed is nil . We do not agree with Sh. Lakshmi Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary, in terms of the provisions of Sections 68(a), 46(1) and 17 read with the definitions of Sec. 2(2) of Customs Act. This being so, the question of short-levy can arise only when the assessment for purposes of quantifying the duty to be paid by the assessee has been finalised and the duty has been paid after a home consumption Bill of Entry is filed. 12. In this case, the Government of India seeks a review of the decision regarding the rate of duty and this review notice has been issued within one year from the date of the order proposed to be reviewed. It is, therefore, well written the time-limit prescribed in Section 131, in my opinion. 13. Besides, to deal with these two cases differently would be to make an invidious distinction. Merely because in one case duty was paid and the matter was agitated, the party should not be at a disadvantage vis-a-vis another party, who chooses not to pay duty or have the goods cleared for home consumption. Even the law as interpreted above does not seem to provide for this In the circumstances, I would respectfully differ from my learned brothers and - reject this appeal also. 14. However, the majority decision is accepted by me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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