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TMI Blog1996 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities invoked Rule 223A of the Central Excise Rules, 1944 and called upon the assessee to explain the shortages and the assessee was given an opportunity to show cause why penalty should also be not imposed on the assessee. The case of the assessee before the authorities was that the show cause notice has been issued after the expiry of the period specified under Section 11A of the Central Excise Act and it was pleaded that the shortages, if any, can be set off against the excess and there is no justification for the departmental authorities to demand excise duty on the alleged shortage alone. The Assistant Collector of Central Excise overruled the objections preferred by the assessee and confirmed the demand of Rs. 1,60,623.12 in respect of shortgages under Rule 223A of the Central Excise Rules, 1944 and directed the goods found in excess to be entered into R.G.I. account. The Assistant Collector also imposed a penalty of Rs. 2,000/-. The petitioner filed an appeal before the Collector of Central Excise (Appeals). The first appellate authority held that the Assistant Collector ought to have adjusted the shortages against the excess and in this view of the matter, he cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government transferred the papers to the Appellate Tribunal. On 9-1-1987, the Central Government, in exercise of powers under Section 35EE(4) of the Central Excises and Salt Act, 1944, issued the show cause notice to the assessee company on the ground that the order of the Collector (Appeals) dated 3-1-1985 was found to be illegal, improper and incorrect for the reasons set out in the notice. The Government therefore, prima facie felt that the impugned order-in-appeal called for revision and the assessee company was given a show cause notice to submit its reply as to why the order passed by the Collector of Central Excise should not be revised. The assessee company has challenged the show cause notice in the present writ proceedings. 3.Mr. Krishna Srinivas, learned Counsel for the petitioner challenged the impugned order on the ground that the issue of notice is orbitrary and without jurisdiction. He submitted that the Collector of Central Excise, after filing an appeal before the Appellate Tribunal against the order of the Collector of Central Excise (Appeals), was not justified in issuing the impugned proceedings. According to the learned Counsel for the petitioner, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 11A(1) of the Act. He, therefore, submitted that the notice issued beyond the period of five years from the relevant date, is not valid and the period prescribed under Section 11A of the Act should be imported to the provisions of Section 35EE(4) of the Act and hence, the impugned notice is without jurisdiction. 4Mr. V.T. Gopalan, learned Senior Counsel for the. respondent submitted that the course of events that happened in the case would indicate that the respondent has exercised the power within the reasonable time. Mr. V.T. Gopalan, learned Senior Counsel submitted that it is not open to the petitioner to plead that the period of limitation for exercising revisionary powers should be read into Section 35EE(4) of the Act in the light of other provisions of the Central Excise Act or other provisions of some other Acts. According to the learned Senior Counsel appearing for the respondent, when the legislature has not provided a period of limitation, it is not open to the Court to prescribe a period of limitation for the exercise of revisional powers under Section 35EE(4) of the Central Excise Act, and if the Court prescribes a period of limitation for the exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the appeal papers to the Central Government for exercise of its power of revision under Section 35EE(1). This Court held that the procedure adopted by the Tribunal was not correct and hence, on the basis of the decision of this Court, the Appellate Tribunal returned the appeal papers to the appellant before the Tribunal on 11-11-1996. Subsequently, in July, 1987, show cause notice was issued by the Government of India in exercise of the power under Section 35EE(4) of the Act. Section 35EE(4) of the Central Excise Act reads as under : "The Central Government may, on its own motion, anual or modify any order referred to in sub-section (1)." It is significant to notice that no period of limitation is prescribed under the provisions of Section 35EE(4) for the exercise of the suo motu power of revision by the Central Government. It is relevant to notice that for exercise of powers of revision on the basis of an application under Section 35EE(1), the Act provides a period of limitation of three months from the date of communication of the order to the applicant, but no such limitation is found in Section 35EE(4) of the Act. 6. Mr. Krishna Srinivas, learned Counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Traders [1980 (I) S.C.J. 426] wherein it is held that casus omissus issue should not be readily inferred and the statute should be read as a whole and if a literal interpretation of a particular clause leads to a manifestly absurd or an anomalous result, it could not have been intended by the legislature. The said decision is not applicable to the facts of the case as the interpretation of Section 35EE(4) of the Act would not lead to an absurd or anomalous situation. The decision of the Supreme Court in Rajindera Prasad Dhashane v. Union of India Ors. [J.T. 1988 (3) S.C. 190] to the effect that the statute should be read to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences. On the other hand, in a decision of the Supreme Court in Government of India v. Citedal Fine Pharmaceuticals [1989 (42) E.L.T. 515 (S.C.)], the Supreme Court held that where a rule does not provide for any period of limitation for the recovery of duty, it cannot be held that the rule is an unreasonable and violative of Article 14 of the Constitution. The Supreme Court further held that whatever may be the reasonable period, it depends upon the facts of each cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered in the light of the questions which were before the court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered and, while applying the decision at a later case, courts must carefully try to ascertain the true principle laid down by the decision." 8. The next contention that was raised by him is that the petitioner has been deprived of valuable right of limitation and hence, the respondent has no jurisdiction to issue the interim show cause notice. As already seen, Section 35 EE(4) of the Act does not prescribe any period of limitation for the Central Government to exercise the suo motu power to revision to annul or modify an order referred to under Section 35B(1) of the Central Excise Act. I have already taken a view that there is no period of limitation prescribed under Section 35EE(4) of the Act and hence, it is not possible to accept the contention of the learned Counsel for the petitioner that it is deprived of the valuable right of limitation. Secondly, it must be remembered that the power under Section 35EE(4) is a suo motu power of revision, and the appellate power under Section 35B and the revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel for the petitioner also relied upon Section 35EE(6) of the Act and contended that where the Central Government is of the opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under Section 35EE(6) of the Act, unless the person affected is given a show cause notice within the time limit prescribed under Section 11A of the Act. According to the learned Counsel for the petitioner, the maximum time limit specified under Section 11A of the Act is five years from the relevant date and since the time limit prescribed under Section 11A of the Act has already expired, the impugned notice issued after the time limit prescribed under Section 11A of the Act is not valid in law. This contention is also not sustainable, because it is not a case where any duty has not been levied or it is also not a case where any duty has been short levied. As already seen, the duty has already been levied but the duty levied was set aside in appeal. Hence, on the terms of Section 35EE(6) of the Act, the impugned notice does not fall within any of the categories of cases mentioned in Section 35EE(6) of the Act. Hence, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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