Decided on May 04,1990

Indian Textile Paper Tube Company Limited Appellant


- (1.)-The appellant imported Top Line Tube Winder Endless Belts. of the value of Rs. 31,101. 00 from the United Kingdom under the Bill of Entry dated 6/08/1979. The goods were assessed to duty under heading 40. 05/16 (3 at 40 per cent plus countervailing duty at the rate of 25 per cent under Item 16-A (4 of the Customs Tariff Act, 1975. The appellant a thereafter made an application for refund of the excess of duty so charged contending that the goods were in fact liable to be classified under heading 59.16/17 and without countervailing duty. The Assistant collector rejected the claim by his order of 12/10/1979. Against it, the appellant preferred an appeal under S. 128 of the Customs Act, 1962 (hereinafter referred to as the 'act') to the Appellate Collector of customs. On 2/05/1981, the Appellate Collector allowed the appeal holding that the goods were classifiable under heading 59.16/17.
(2.)On 21/11/1981, the government issued a notice to the appellant under S. 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 per cent ad valorem and also to show-cause as towhy the order of 2/05/1981 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 S. 131 read with S. 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 3/09/1984 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 Appellate Collectors order under S. 131 (3 of the Act. The argument is that the limitation for initiating action under sub-section (3 of S. 131 is laid down in Ss. (5 thereof. For, the cases in which the central government would initiate action under sub-section (3 can only be the cases either of the absence of levy or of the short levy or of refund. In any of the said cases, the limitation laid down under sub- section (l) read with Ss. (3 of S. 28 is six months. In the present case, the levy of duty was on 6/08/1979 and the order of the appellate Collector was of 2/05/1981, while the show-cause notice was issued on 21/11/1981. In any case, therefore, the notice was beyond six months and hence barred by limitation.

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