9911796707
TMI Blog2008 (9) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... TURE AT DELHI]. W.P. allowed. The impugned order dated 30-1-1981 is set aside. - 2258 of 1981 - - - Dated:- 22-9-2008 - Badar Durrez Ahmed and Rajiv Shakdher, JJ. [Judgment per : Badar Durrez Ahmed, J. (Oral)]. - The short point raised in this writ petition is that the order passed by the Central Government on 30-1-1981 under Section 36 of the Central Excise Act, 1944 was beyond time. The facts are that the Appellate Collector of Central Excise had passed an order under Section 35 of the said Act in favour of the petitioner on 28-3-1978. The show cause notice under Section 36(2) of the said Act was issued on 16-10-1978. Consequent to the said show cause notice, the impugned order dated 30-1-1981 has been passed. 2. The provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. Provided also that where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied or erroneously refunded, no order levying or enhancing the duty, or no order requiring payment of the duty so refunded, 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 section 11A." 3. A plain reading of the said provision makes it clear that by virtue 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 passed under Section 35 or Section 35A of the said Act for the purpose of satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to note that in the writ petition in ground (h) the petitioner has specifically taken the plea that the show cause notice was time-barred. The plea taken was that :- "The show cause notice, however, is dated 16-10-78, i.e. well after the time limit of six months specified in Section 11A of the said Act from the order-in-appeal dated 28-3-78. It is submitted that the first respondent has no power at all to initiate the impugned review proceedings under Section 36(2) of the said Act and the said show cause notice dated 16-10-78 and the said order in review were patently without jurisdiction, illegal, null and void." 5. In response to this plea, the respondents in their counter-affidavit have only taken the point that the said plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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