TMI Blog1984 (8) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-11-1981 in exercise of the power vested in him under Section 35A(2) of the Central Excises and Salt Act, 1944, as it then existed, (hereinafter referred to as the Act). 2. The facts, so far as relevant to the controversy now before us, are that the Assistant Collector had served two successive notices on the appellants, one dated 12-3-1980 and the other dated 16-5-1980 raising demand for butter, pasteurised/unpasteurised, alleged to have been manufactured, and cleared by the Military Dairy Farm, Kirkee, Pune (appellants herein) during the period 1976-77 to 31-3-1980. The Assistant Collector, after consideration of the material before him, confirmed the demand of duty with reference to non-pasteurised butter, only for the period 18-6-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailed in this appeal, on a number of grounds; the foremost being that there was a clear restriction on the power of the Collector to issue review notice on account of non-levy or short-levy within a period of six months, from the date of the order which is sought to be reviewed, which limitation was provided by sub-section (3)(b) of Section 35A, with reference to which the Collector had exercised his power to review the Assistant Collector s order. It was pleaded that the notice having been issued on 13-11-1981 whereas the original order was passed on 18-11-1980, on this ground alone, the order of the Collector was liable to be set aside. It was, however, further pleaded that there was no wilful mis-statement or fraud or suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of demand, had been provided; any notice to review the Assistant Collector s order issued after six months of the passing of the said order was not sustainable. 7. Shri Tayal though conceding that the time-limit as contemplated by Section 11A would apply inasmuch as the notice in this case had been issued after 17-11-1980 by which time Section 11A had come into force and consequently, the controversy which had been raised by virtue of judgment of Bombay High Court in case of Patel Prabhudas Purshottamdas v. Union of India and Others (1982 E.L.T. 112), on the view that Section 11A having not come into operation at the time, the review notice in that case had been issued, the time-limit of six months set therein would not apply, did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty or mala fide intention, and it would at the most be a case of nonconformity with rules due to ignorance. 9. We have given our very careful thought to this aspect of the matter and we find that it has been categorically provided in sub-section (3)(b) of Section 35A that ii notice to review/to be issued by the Collector in relation to any order passed by an officer subordinate to him, has to be within the time-limit prescribed by Section 11A. The scope of this cross-reference has been interpreted firstly by a Division Bench of Delhi High Court, in the case of Associated Cement Companies Ltd. v. Union of India reported as 1981 E.L.T. 421 and thereafter by Bombay High Court - also a Division Bench - [1984 (16) E.L.T. 177] and it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A is apparently at the time of clearances, and the fact of such an alleged suppression or mis-statement would be relevant at the time the original notice for demand is issued as the Department is then within its right to say that the fact of manufacture or clearances having not been disclosed to them, they were prevented by such act of the assessee himself, from raising a demand within the prescribed period. But once a notice of demand had been issued, and adjudication proceedings had been duly held, and an adjudication order passed, which order the Collector differs from and seeks to review, it does not lie with the Department to contend that because of the original suppression or concealment, again a period of five years would be availab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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