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TMI Blog1996 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government in the matter of calculation of duty two Notification Nos. 21/77, dated 26-2-1977 and 198/96, dated 16-6-1976 came into play but the question was as to which had to be applied first for the purpose of working out the excise duty. The respondents, manufacturers of scooters had availed of the proforma credit of duty by them on I.C. Engines used in the manufacture of scooter. They have further availed of 25% reduction in excise duty under Notification No. 198/76 dated 16-6-1976. The net duty liability was worked out on the basis of assessable value multiplied by 75% of the effective rate of duty. The duty amount arrived at was adjusted through the proforma credit. However, the Assistant Collector, Central Excise, Sangali held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of receipt of an application from any person aggrieved by any decision or order passed under the Act or the Rules made thereunder by any Central Excise Officer or the Central Board of Excise and Customs and from, which no appeal lies to reverse or modify such decision or order. Sub-section (2) which has three provisions thus reads as under : Sub-section (2) of Section 36 : "(2) The Central Government may, of its own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been under Section 35 or Section 35A of this Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit: Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the Revenue contends that the matter fall under the second proviso, the assessee contends to the contrary and invokes the third proviso. The limited question which we are called upon to consider is whether the assessee is right in contending that the third proviso is attracted and, therefore, the initiation to exercise of Revisional Jurisdiction under Section 36(2) of the Act is barred by limitation. 4.The contention urged by the assessee found favour with the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi. It held that it was by now well settled that such show cause notices have to be issued within the period of limitation prescribed by the third proviso to Section 36(2), i.e. within six months from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Therefore, under the newly introduced Section 11A also in case of non-levy or short levy or erroneous refund the action has to be taken within six months from the relevant date. The proviso to Section 11A is not relevant for our purpose. It will thus be seen that in the category of cases falling under Rule 10 and 11A the period of limitation which was initially three months under the former was raised to six months under the latter. Section 36(2) posits that where the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the assessee may be called upon to make good the case would not fall in the third proviso and but would be governed by the second proviso. As against this, contention of the counsel for the assessee Mr. Dave is that if the ultimate impact of the action contemplated by Section 36(2) is to recover a shortfall in the duty payable by the assessee the case falls within the purview of the third proviso to Section 36(2). Having regard to the historical background it seems to us that the legislature desired that cases of non-levy, short-levy, and erroneous refund should receive a different treatment and the period of limitation should be consistent with the period of limitation under Section 11A of the Act, that is to bring about a uniformity in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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