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TMI Blog1985 (6) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on examination of the proceedings of the Assistant Collector of Central Excise, IDO, Mysore, respectively in C. No. V/17/18/26/82 Ins., dated 30-9-1983 and C. No. V/17/18/61/82 Ins., dated 10-2-1983 on grounds of legality, propriety and correctness, directed the Assistant Collector of Central Excise, Legal to file appeals before the Collector of Central Excise (Appeals), in terms of Section 35E(4) against erroneous refunds granted to the respondent herein. The appeals were dismissed by the Collector of Central Excise (Appeals) on grounds of limitation under Section 11A of the Act out of which the present appeals arise. 3. The learned Senior Departmental Representative submitted that the suo motu revisional powers exercisable by the Collector of Central Excise by calling for and examining the record of any proceedings in which an adjudicating authority subordinate to him has passed an order to satisfy himself as to the legality or propriety of such an order to are not controlled and subject to the period of limitation envisaged under Section 11A of the Act. The Senior Departmental Representative in expatiating on this submission urged that a superior authority in law is empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in the instant case, the review proceedings initiated by the Collector would be without jurisdiction. 5. We have carefully considered the submissions of the parties herein. In order to understand the import of the revisional powers which a Collector of Central Excise is suo motu empowered to exercise on grounds of legality and propriety in respect of an order passed by a subordinate authority, the relevant provisions may be extracted :- 35E. (2) The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding, in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order. (3) No order shall be made under sub-section (1) or sub-section (2) after the expiry of two years from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been levied or paid or has been short levied or short paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short levied or short paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11 A to show cause against the proposed order. (emphasis supplied). The Parliament in its legislative wisdom, in our opinion, has advisedly used the word appellant in the second proviso to Section 35A of the Act extracted above. If issuance of a show cause notice within the statutory period of limitation envisaged under Section 11A were to be construed as sine qua non and a condition precedent for the very exercise of suo motu revisional powers by a superior authority viz. the Collector of Central Excise in terms of Section 35E of the Act, the same would have been clearly expressed in Section 35A, more particularly when the second proviso to Section 35A expressly refers to the appellant before Collector (Appeals), the time limit specified in Section 11A in relation to him and the statutory embargo on the Collector (Appeals) from passing an order requiring the appellant before hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teral interpretation produces a mainfestly absurd and unjust result which could never have been intended by the legislature, courts would not be justified in modifying the plain language of the section. Ultimately it should be the endeavour or attempt on the part of a court or a tribunal to discover the intent of the legislature from the language used by it. After all, language is only an imperfect instrument for expression of human thought and to borrow the felicitous diction of the great jurist Lord Denning it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity . Section l1A and Section 35E(3) should be construed harmoniously even if there be a conflict between the two so as to provide a workable and well reasoned basis on which each might fulfil its purpose in aid of the object of the enactment. In our opinion, if the power of the Collector of Central Excise exercisable under Section 35E is construed in proper prospective as one in the nature of a judicial examination of a decision of an inferior authority to rectify any error in the order, such powers though revisional in nature, would be appellate in character and it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty not levied or paid, short-levied or short-paid or erroneously refunded. This limited power reviewed has been very succinctly explained in the ratio of the Bawa Potteries case referred to supra. Therefore, when the Parliament has clothed an authority like the Assistant Collector with a limited power of review to readjudicate issues in certain circumstances covered by Section 11A within a statutory period of limitation, it would be incongruous to envisage a superior authority, viz. the Collector of Central Excise invested with suo motu revisional and correctional powers of jurisdiction over his subordinate authority on grounds of legality and propriety to exercise the same power in the same and identical manner as his subordinate Assistant Collector does. Such a construction would cut at the root of the correctional jurisdiction envisaged by Section 35E and lead to a very anomalous situation of subordinate officers passing illegal or improper order on the last date of limitation specified under Section 11A, leaving a superior officer like the Collector of Central Excise invested with correctional revisional jurisdiction a sad hapless spectator, because the Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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