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TMI Blog1996 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4th November, 1981, asking them to show cause why frit should not be classified under sub-item (4) of Item 23A with effect from 1st March, 1979, and the order of the Assistant Collector accepting that classification under the general Item 68 be revised accordingly. The appellants showed cause. The Collector by his order dated 3-12-1981 made the notice absolute. He set aside the Assistant Collector's order. He ordered that frit `is hereby classified as other glass falling within the purview of Item 23A(4) of the First Schedule'. He further ordered that the appellants `shall pay the duty of excise at the appropriate leviable rate on frit glass manufactured and cleared by them as applicable to Item 23A(4) of the said First Schedule or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f frit and because we are of the view that no notice for the recovery of short-levied duty as required by Section 35A was given to the appellants. 5. The relevant provisions of Section 35A read thus :- "S. 35A. - Revision by Board or Collector. - 1. ......................................... 2. The Collector of Central Excise may, of his own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under this Act or the rules made thereunder by a Central Excise Officer subordinate to him (not being a decision or order passed on appeal under Section 35) for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to pay is (a) given notice to show cause against "it", that is, against being required to pay; and (b) the notice is given within the time limit specified in Section 11A. 6. The order of the Collector under Section 35A gave to the appellants no notice that he proposed to make an order that would require them to pay the duty which might be found to have been short-levied if the frit was found to be classifiable under Item 23A(4). The orders of the Collector and of the Tribunal, insofar as they required the appellants to pay the short-levied duty, even though limited to the period of six months prior to the date of the notice by the Tribunal, are bad in law. 7. In the result, the appeal is allowed. The order of the Tribunal is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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