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TMI Blog1990 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods were classifiable under Heading 59.16/17. 2. On November 21, 1981, the Government issued a notice to the appellant under Section 131(3) of the Act asking him to show cause as to why the goods should not be classified under Heading 39.07 which attracted duty at 100% ad valorem and also to show cause as to why the order of 2nd May, 1981 passed by the Appellate Collector should not be annulled. Against the said show cause notice, the appellant preferred an appeal to CEGAT. The contention with regard to limitation was that the show cause notice was barred by limitation as laid down by sub-section (5) of Section 131 read with Section 28 of the Act, which was six months from the date of short-levy and in any case six months from the date of the Appellate Order. The Tribunal dismissed the appeal holding that the notice was in time and also further that the assessment proposed to be made under Heading 39.07 was proper. It is against this decision of September 3, 1984 of the Tribunal that the present appeal is preferred. 3. Before us the only contention raised is that the show cause notice was barred by limitation and hence, the Government had no power to annul the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund has yet been made, the action of the Government under Section 131(3) is clearly not barred by limitation. Section 28 of the Act states that when any duty has been erroneously refunded, the proper Officer may, within six months from the relevant date, serve notice on the persons chargeable with the duty to whom the refund has erroneously been made, requiring them to show-cause why they should not pay the amount specified in the notice. Sub-section (3) of Section 28 then defines the expression "relevant date" for the purposes of sub-section (1). Clause (c) of said sub-section (3) states that the "relevant date" in a case where duty has been erroneously refunded means the date of refund. The decision in Geep Flashlight Industries Ltd. case (supra) has while dealing with this very aspect pointed out that in the case of erroneous refund, the notice under Section 28 of the Act has to be given within six months from the date of "actual" refund. If no refund has in fact been made, limitation cannot be said to arise inasmuch as the "relevant date" under Section 28 in the case of erroneous refund speaks of the date of refund. The Order granting refund is not actual refund. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority under sub-section (5) and not when the Government takes action to annul or modify the appellate or revisional orders under sub-section (3). 7. This interpretation is also consistent with the provisions of sub-sections (1) and (4) of Section 131. Sub-section (1) speaks only of appellate and revisional orders passed under Sections 128 and 130 respectively and of no other order. Similarly, clauses (a) and (b) of the sub-section (4) make a distinction between the appellate and revisional orders passed under Section 128 and 130 respectively. Where an appellate or revisional order has already been passed enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value, it does not permit Government to pass any order again enhancing the penalty or fine. It, however, permits passing of such order in any other case, but within a period of one year from the date of the order sought to be annulled or modified. Hence the legislature has in Section 131 all along maintained the distinction between the orders passed under Sections 128 and 130, and other orders. Viewed from this angle also, it is necessary to read the provisions of sub-section (3) of Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect in classifying the goods under Heading 59.16/17 of the Customs Tariff Act, 1975, as also that the original classification under Heading 40.05/16(3) done by the Assistant Collector was also not in order. The matter thus was sent to the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi where the plea of limitation was raised by the appellant besides raising factual pleas with regard to the nature of the consignment and its liability to be classified under an appropriate head. The Tribunal, instead, on facts classified the consignment as articles of plastic under Heading 39.07 of the Customs Tariff Act, 1975 and not under Heading 59.16/17 as done by the Appellate Collector and thus set aside the order of the Appellate Collector allowing the revision. 12. The plea of time bar raised by the appellant was repelled by the Tribunal in the following words : "On the question of time bar we find that the Appellate Collector issued the orders on 4-7-1981, the show cause notice was issued on 21-11-1981 and served on the party on 24-11-1981. The show cause notice has therefore been issued within the period of six months. Section 131(5) of the Customs Act, 1962 refers to a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of six months, allow it to be presented within a further period of six months. The Central Government may of its own motion annul or modify(3) any order passed under Section 128 or Section 130. No order enhancing any penalty or fine in lieu of(4) confiscation or confiscating goods of greater value shall be passed under this section - in any case in which an order passed under Section 128 or(a) Section 130 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value; and in any other case, unless the person affected by the(b) proposed order has been given notice to show cause against it, within one year from the date of the order sought to be annulled or modified. Where the Central Government is of opinion that any duty of(5) customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 28 of the Act speak of non-levy, short-levy and erroneous refund. The provisions state that notice of non-levy, short-levy or erroneous refund should be given within six months from the relevant date. Section 28(3) states what the `relevant date' means. In the case of duty not levied, the `relevant date' is the date on which the proper officer makes an order for the clearance of the goods. In a case where duty is provisionally assessed under Section 18 of the Act, the relevant date is the date of adjustment of duty after the final assessment. In a case where duty has been erroneously refunded, the relevant date is the date of refund. In any other case, the relevant date is the date of payment of duty." It can thus be clearly gathered that in cases of duty not levied or short-levied the "relevant date" is the date on which the concerned officer makes some orders for the clearance of the goods on payment of no duty or the date of adjustment of duty on framing the final assessment, as the case may be. 16. Now reverting to the facts of the instant case it is evident that the goods were classified and assessed to duty under one heading, say A, on 6-8-1979 whereafter clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy in the order of the Assistant Collector in classifying goods at A instead of C as claimed by the revenue and not classifying them at B as claimed by the importer, then on the grant of relief by the Appellate Collector classifying them under heading B, can at best give occasion to the Central Government to annul or modify the classification brought under head B, and so as to leave it classified at heading A, but could not have it re-classified under heading C unless the exercise was undertaken within the period of limitation prescribed under Section 28 as required under sub-section (5) of Section 131 of the Customs Act, 1962. The error committed by the Tribunal, for the view afore-expressed, is so patent that it cannot be allowed to go uncorrected as a tolerable error. Inevitably this appeal is to be, and is, hereby allowed, modifying the orders of the Tribunal passed in Appeal No. CD(SB)(T)1604/81-C so as to revive the order of the original assessment dated 6-8-1979 and the order of the Assistant Collector of Customs, Madras dated 12-10-1979, keeping upset the orders dated 2-5-1981 of the Appellate Collector of Customs, Madras passed in Appeal No. C/3/212/80. 17. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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