TRIVENI SHEET GLASS WORKS LIMITED Vs. COLLECTOR OF CENTRAL EXCISE
SUPREME COURT OF INDIA
TRIVENI SHEET GLASS WORKS LIMITED
COLLECTOR OF CENTRAL EXCISE
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(1.)THIS is a petition for special leave to appeal from the judgment and order of the High Court of Allahabad dated 16.8.1990 in Civil Miscellaneous Writ Petition No. 390 of 1982. We issued notice to the Respondents but, after hearing both counsels, we announced our decision dismissing the special leave petition. We, however, said that we would give our reasons for our conclusion later. We proceed to do so by this order. This Petitioner (hereinafter referred to as 'the Assessee') is a company manufacturing sheet glass in its factory at Iradatganj. The price lists filed by it under the Central Excises and Salt Act, 1944 ('the Act') were accepted by the department all through from 1976 onwards. On 6.5.1981 the Superintendent (Preventive), Central Excise, Allahabad issued a show cause notice to the Assessee under Section 11A of the Act alleging that the clearances upto 30.6.1980 had suffered short levy of excise duty. We are not concerned here with the details of the basis for the issue of this show cause notice except to briefly mention that, according to the department, the Assessee had evaded duty during the above period by showing in his price lists the prices at which the goods had been sold by the Assessee to M/s. Hindustan Sheet Glass Works Ltd., which was a related person within the meaning of the Act. The Assessee submitted an explanation on consideration of which the Assistant Collector dropped the proceedings in pursuance of the notice dated 6.5.1981. This was on 17.6.1981.
(2.)ON 22.5.1982 the Collector of Central Excise issued show cause notice to the Assessee under Section 35A of the Act proposing to revise and set aside the order of the Assistant Collector and proposing to confirm the demand of duty allegedly evaded by the Assessee, which, in the notice of the Supdt. (Preventive), Central Excise, dated 6.5.1981 had been set out at Rs. 4,01,36,595.15. On receipt of this notice the Assessee filed a writ petition in the Allahabad High Court. This writ petition has been dismissed and hence the present special leave petition.
(3.)THE short point which has been agitated before us is as to whether the notice dated 22.5.1982 issued by the Collector of Central Excise is barred by time under the provisions of Section 35A(3)(b) of the Act. This clause and Sub -section (4), at the relevant date, read as under:
(b) Where the Board or, as the case may be, the Collector of Central Excise 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.
(4) No proceedings shall be commenced under this section in respect of any decision or order [whether such decision or order has been passed before or after the commencement of the Customs, Central Excises and Salt and Central Board of Revenue (Amendment) Act, 1978] after the expiration of a period of one year from the date of such decision or order.
The High Court came to the conclusion that, having regard to the similarity of language between Section 11A and Section 35A(3)(b), the two periods of limitation applicable under Section 11A are equally applicable under Section 35A(3)(b) depending upon the nature of the allegations in the show cause notice. Having regard to the fact that prima facie the allegations in the show cause notices issued in the present case brought the case under the larger period of limitation set out in Section 11A, the High Court was of the opinion that the revision could have been made by the Commissioner within 5 years but for the provisions of Sub -section (4), which provided a shorter period of limitation in the interests of finality of the proceedings under the Act. Admittedly the notice in this case had been issued by the Collector within a period of one year from the date of order sought to be revised. It was, therefore, held that the proceedings initiated by the Collector were within time and the writ petition was dismissed.
We are of the opinion that the High Court was right in holding that the notices in this case were issued within the period of limitation. Section 35A(3)(b) enables the Collector to give a notice within the time limits prescribed under Section 11A. Section 11A provides two periods of limitation: one of a period of 6 months and the other of a period of 5 years. The submission on the part of the Assessee that this clause attracts only the shorter period of limitation prescribed in Section 11A and not the longer one is wholly untenable and the High Court was clearly right in rejecting the same. This is sufficient to dispose of the present case.
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