TMI Blog1980 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 3 of the Act. By Notification No. 89/76-C.E. of 16th March, 1976 certain exemptions from payment of duty in respect of certain types of cement were granted as follows :- S. No. Variety Duty 1. Water-proof (Hydrophohic) cement) Rupees ninety-four per metric tonne 2. Grey cement of specific surfaces not less than 3500 Om. 2gm. rapid cement Rupees ninety-one per metric tonne 3. Others Rupees eighty-two per metric tonne 3. The Superintendent of Central Excise M.O.R. Peddapalli by demand orders O.C. No. 859 dated 23-10-1976 and No. 96/77 dated 27-8-1977 called upon the petitioner to pay duty at Rs. 91/- per metric tonne on `pozzolana cement' manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opinion 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 enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o will not fall in the ambit of the third proviso. The reason is that while the second proviso is a provision as general as the substantive part of Section 36(2), the third proviso is a provision which carves out a particular area only from Section 36(2) but leaves out the rest to be covered by the second one. The only opinion to which the third, proviso refers is the opinion of the Central Government that any duty of excise has not been levied or has been short levied or erroneously refunded by the appellate order which is sought to be revised by the Central Government under Section 36(2). By way of contrast it is to be noted that under the second proviso there is no such limitation in respect of the order sought to be revised by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired by the first proviso is provided in the second proviso, probably because the opinion of the Central Government that the appellate order is either not correct or legal or proper is not so prejudicial to the person to be affected by the proposed order as should be the order which would be proposed by the Central Government under the third proviso. This is the reason why the shorter limitation is provided for under the third proviso for reviewing the appellate order because the Central Government is of the opinion that appellate order has resulted in a non-levy or short-levy of duty. Short-levy or non-levy of duty results in great prejudice to the Revenue and revision of that order on that ground would also result in great prejudice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government to choose its language in giving show cause notices under the first proviso to Section 36(2), the view of the Central Government has to be gathered not only from the language used in the show-cause notices but also by reading the said language with the orders passed under Section 35 or 35-A which are sought to be reviewed by the orders proposed in the show cause notices. Once the notices are read with the orders passed under Section 35 or 35A, it would be clear whether the notices are issued under the third proviso. The language of the impugned show cause notices in the present case purports to be under the substantive part of Section 36(2). It cannot, however, attract the application of the limitation prescribed under the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11A is of action taken by assessing authorities and, therefore, it is not applicable and cannot be incorporated in the third proviso to Section 36(2) for the simple reason that the revision under Section 36 (2) is not of the orders of the original assessing authorities but only of the orders passed in appeal/revision under Section 35 or 35A. We have, therefore, calculated the period of six months for the purposes of the application of the third proviso to Section 36(2) from the date of the appellate orders. It may also be mentioned that the same policy of providing a shorter period of limitation, namely, of six months with reference to duties not levied or not paid or short levied or not paid in full or erroneously refunded is to be foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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