TMI Blog1986 (9) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, was M/s Macneill Barry Ltd. but, by the time the review notice was issued, the name of the company had changed over to M/s Macneill Magor Ltd. . The order was passed against this substituted Company, and the same is now the Appellant before us. 3. The appeal, which was originally a revision petition, sets out in detail the dates of import and clearances of the goods, which are the subject-matter of these proceedings; which dates have been shown to be falling between the period: May 1975 to July 1975, covering all the three consignments of Glacier thin walled bearings. Besides repudiating the allegations on merits, there is also a challenge to the competence of the Collector of Customs to exercise powers under Section 130(2) of the Customs Act, on the plea that no decision or order, passed by the officers of Customs, can be revised under Section 130(2) of the Act by the concerned authority on its own motion, after expiry of two years from the date of such a decision or order. It is contended that in the instant case, the Collector, in purported exercise of powers under the said Section, passed the order in review, revising the order or decision of the Customs officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... godown on 28-5-1975, 19-6-1975 and 9-7-1975, respectively. Shri Bajoria submitted that the dates of clearances have to be taken to be the dates, prior to these three aforesaid dates of receipt of the goods in the appellants godown and, consequently, it has to be taken as an uncontroverted fact that the relevant orders, as to the assessment of duty, were passed in this case during the months of May, June and July, 1975. 7. He contended that the wording of Section 130(2), as existing prior to its amendment w.e.f. 1-7-1978, clearly provided that an order under this provision in exercise of suo-motu powers had to be passed within two years of the passing of the order sought to be revised, and that there was an embargo on the powers of the concerned authority, to pass an order after expiry of two years from such an order, on its own motion. He gave a comparative reading of Section 130 of the Act as it existed prior to 1978, and subsequent thereto, and pointed out that a further distinction has been maintained as to the available limitation when a power is exercised suo-motu, as distinguished from the exercise of such a power on an application being made by the affected party. Shri Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the final order in review should be passed before the expiry of two years from the date of the order sought to be revised and that, in this view of the matter, the order in this case having been passed after a period of two years from the date of the respective assessment orders - last of which was, in any case, before 9-7-1975, was not sustainable. 9. Shri P.K. Ajwani, SDR, controverted the arguments by contending that the period of two years, as mentioned in Section 130(2) of the Act as it stood at the relevant time, was of a directory nature and could not be read as being mandatory. He drew a parallel by referring to the provisions of the Customs Act as well as the Central Excise Act, under which a statement of a case is required to be made by the Tribunal to a High Court within a given time, and cited a case decided by the Tribunal in respect to the provisions of Section 35G(1) of the Central Excises Act, reported in 1986 (23) E.L.T.459 (Tribunal) in the case of Anna Match Works and Others v. Collector of Central Excise, Madras. According to the learned SDR, this was an analogous decision whereby the Tribunal has held that the period of time-limit of 120 days under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the legislature provided so in clear terms. He referred to the provisions of Explanation 1 to Section 153, and the Explanation to Section 263 of the Income-tax Act, 1961, in this regard. He also contended that the period prescribed in the old Section 130(2) of the Act was of mandatory nature and operated as a fetter on the jurisdiction of the concerned authority to revise the order after expiry of the stipulated period, for which argument, he placed reliance on a Supreme Court decision in Income-tax matter reported as 1964 (53) ITR 231 S.C. S.S. Gadgil v. Lal and Co. He further contended that the argument of inconvenience was not available to the Department when a clear period of limitation has been laid down because every law of limitation causes some hardship, as held by the Supreme Court in another Income-tax matter reported in 1959 (36) ITR 569 S.C. Commissioner of Income Tax, Bombay, v. Ranchhod Das Karsondas. 13. He also argued that the analogy of the decision of the Courts in reference-matters did not apply because, there, the underlying idea was that once a party had made application within the stipulated time, then a simply because there were some laches on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a clear bar for the passing of an order after the expiry of the period of two years, as contained therein. 16. On a careful resume of the facts arguments set out above, we are inclined to uphold the contention of the appellants that the provisions of Section 130(2), as then existing, created a clear bar on the power of the Collector to pass an order in review, or revision, after the expiry of two years from the date of the passing of the order, sought to be reviewed. The wording of the Sub Section under reference having been couched in an imperative negative, it does not admit of any doubt in this regard, as it lays down that: No decision or order passed by an officer of Customs shall be revised under this Section..... (emphasis ours). 17. This provision has already been examined at length by this Tribunal, after detailed consideration of every aspect urged before them in the case of M/s Anglo-Indian Jute Mills Co. Ltd. (supra), with which we propose to respectfully agree. The Bench there, in contra distinction to the exercise of such a power by the competent authority on application being moved; upheld the contention of the appellants therein that in cases of suo- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebarred from completing the assessment beyond the period prescribed as were the case in Sub-Section (3) of Section 34 of the Income-tax Act, 1922". It was because of the fact that in the case before the Hon ble Supreme Court, such was not the case, in so far as the relevant terms of the Kerala Sales Tax Act did not contain any such positive prohibition, that it was held that when assessment proceedings have been undertaken in time, the assessment order was not open to challenge even if final order of assessment happened to have been. passed subsequently. As already noted, it was in the context of provisions of the Act under reference that it was held that the assessment did not mean final order of assessment but their Lordships unequivocally made it clear that this proposition shall hold good only when there was nothing in the context of a particular provision which compells such a meaning being attributed to it. 21. It can, thus, safely be said on the strength of the aforesaid authority that when the law itself lays down in categorical terms, as is the case with Section 130(2) of the Customs Act, that no order or a decision of the lower authorities shall be revised after a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 25. We also find, as pointed out by the learned Counsel of the appellants, that wherever law intends exclusion of time taken in some proceedings while computing the period of limitation; it does so provide in clear terms as, for instance, the Explanation 1 to Section 153 of the Income-tax Act, 1961, or the Explanation to Section 263 of the said Act lay down. There being no such provisions in the Customs Act, it could not be urged on behalf of the respondent that the time taken by the appellants in filing reply, or putting in appearance, should be excluded while computing the period as laid down in Section 130 of the Customs Act. 26. That this period relates to the passing of the final order and not to mere initiation of proceedings, is made clear by subsequent amendment w.e.f. 1978, where exercise of revisionary powers, suo-mot or on an application being made, has been put at par so far as the time-limit is concerned and both relates to, now, initiation or commencement of proceedings. This distinction was clearly pointed out in the Notes and Clauses to the proposed Bill which gives an unmistakable indication of the understanding which the law making authority had, and to remo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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