SUDESH KUMARI SONI Vs. PRABHA KHANNA

JUDGEMENT

(1.) THE short point raised in this writ petition is that the order passed by the Central Government on 30. 01. 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. 01. 1981 has been passed.

(2.) THE provisions of Section 36 as it stood at the relevant point of time read as under:-"sec. 36: Revision by Central Government.- (1) the Central Government may on the application of any person aggrieved by any decision or order passed under this act or the rules made thereunder by any Central Excise Officer or by the Central board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, and from which no appeal lies, reverse or modify such decision or order. (1a) Every application under sub-section (1) shall be accompanied by a fee of rupees one hundred and twenty-five. (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 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 : provided that no decision or order shall be varied so as to prejudicially affect any person unless such person is given a reasonable opportunity of making a representation and, if he so desires, of being heard in his defence: provided further that no proceedings shall be commenced under this sub-section in respect of any decision or order (whether such decision or order has been passed before or after the coming into force of this sub-section) after the expiration of a period of one year from the date of such decision or order. 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 of Section 35 (A) of the said 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. The third proviso to this sub-Section, which is applicable in the present case as the allegation is of short levy, stipulates that where the Central Government is of the opinion that any duty of excise has, inter alia, been short levied, no order levying or enhancing duty shall be made under the said section "unless the person affected by the proposed order is given notice to show cause against it within the time limit specified under Section 11a". Section 11a as it stood at the relevant point of time prescribed a period of six months from the relevant date in case of duty short levied. It is common ground that the proviso to Section 11a is not applicable in as much as there is no allegation that the alleged short levy was on account of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of the said Act or rules made thereunder with intent to evade payment of duty. Consequently, the extended period of limitation of five years available under the proviso to Section 11a would not be relevant for the purposes of the present case.