TMI Blog1996 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-1996 - A.M. Ahmadi, CJI. and K.S. Paripoornan, J. [Order]. - In exercise of power conferred on the Central Government by sub-section (2) of Section 86 of the Central Excises and Salt Act, 1944 (hereinafter called the `Act'), a show cause notice dated 1-10-1981 was issued to the respondent-assessee as the Central Government had, on the examination of the records of the case, tentatively, taken the view that the order in appeal was not proper, legal and correct. According to the Central Government in the matter of calculation of duty two Notification Nos. 21/77, dated 26-2-1977 and 198/96, dated 16-6-1976 came into play but the question was as to which had to be applied first for the purpose of working out the excise duty. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... altered by the fact that the assessee was following the Rule 56A procedure for availaving the benefit of Notification No. 21/77. The Appellate Collector, therefore, appears to have added in allowing the appeal and holding that there was no question of first deducting the amount of proforma credit and then working out the duty payable by applying 25% deduction". On this basis the Central Government invoked the power conferred by Section 36(2) of the Act. 2.Section 36(1) empowers the Central Government of receipt of an application from any person aggrieved by any decision or order passed under the Act or the Rules made thereunder by any Central Excise Officer or the Central Board of Excise and Customs and from, which no appeal lies to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso or the third proviso comes into play in the backdrop of facts mentioned hereinbefore. If the second proviso comes into play the period of limitation prescribed thereunder is one year from the date of decision or order. If the third proviso comes into play the period of limitation is the one specified in Section 11A i.e. six months from the relevant date. There is no dispute before us that if the third proviso applies the action initiated under Section 36(2) is beyond the period of limitation. However, the Revenue contends that the matter fall under the second proviso, the assessee contends to the contrary and invokes the third proviso. The limited question which we are called upon to consider is whether the assessee is right in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, under Rule 10 in cases of short levy the action had to be taken within a period of three months from the date on which the duty or charge was paid or adjusted in the owner's account/current or from the date of making the refund, as the case may be. Subsequently, Section 11A was engrafted in the Act which provides that when any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n applied first in point of time and thereafter the benefit of Notification No. 198/76 should have been allowed to the assessee. This tentative view if accepted would result in a short levy duty which would be recovered from the assessee. However, Mr. Ganguli the learned senior counsel for the Revenue contended that by the show cause notice all that the Revenue was trying to do was to correct the procedure in the matter of calculation of duty and if as a consequence thereof there is a shortfall which the assessee may be called upon to make good the case would not fall in the third proviso and but would be governed by the second proviso. As against this, contention of the counsel for the assessee Mr. Dave is that if the ultimate impact of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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