Appeal No 1830 of 1975
Appeal by Special Leave from the Judgment and Order dated 10 9 75 of the Delhi High Court in Civil Writ Petition No 47575
Soli Sorabjee Ravinder Narain Talat Ansari and Shri Narain for the Appellants
VP Raman Addl
for India SK Mehta and Girish Chandra for the Respondent
The Judgment of the Court was delivered by RAY CJ
This appeal is by special leave from the judgment dated 10 September 1975 of the Delhi High Court
984 The appellant is a manufacturer of dry battery cells
In October 1969 the appellant received a consignment of ten metric tons of manganese dioxide
The Assistant Collector levied duty on the consignment under Tariff Item 28
The appellant preferred an appeal
The Appellate Collector confirmed the order of the Assistant Collector
The appel lant thereafter made an application to the Revisional Au thority
The Revisional Authority held that the goods should be assessed under Tariff Item 26 and ordered refund of duty
The appellant asked for refund and sent reminders to Customs Authorities for refund
On 3 October 1974 the appellant gave a notice under section 80 of the Civil Procedure Code for institution of a suit for recovery of refund
On 10 February 1975 a notice under Section 1313 of the referred to as the Act was
given to the appellant for revision of the order of refund
The appellant impeached the aforesaid notice dated 10 February 1975
The notice inter alia stated that since the goods were processed ore not meant for extraction of metallic manganese they ceased to qualify as an ore  within the normally accepted sense of the term as in item 26 Indian Customs Tariff
The notice thereafter said It therefore appears to the Government that the appellate order does not appear to be sustainable
Therefore in exercise of the powers under section 1313 of the the Government of India proposes to annul the order in Appeal No 590 5931972 passed by the Appellate Collector of Cus toms Calcutta
The appellant made an application under Article 226 and moved the Delhi High Court
The appellant in the applica tion asked for a writ in the nature of prohibition restrain ing the Opposite party thereto from taking any proceeding pursuant to the impugned notice
The appellant also asked for a writ of certiorari to quash the notice
The appellant also asked for a writ of mandamus not to withhold the excess duty paid by the petitioner and ordered to be refund ed
The contention of the appellant was that the power of suo motu revision under section 1313 of the Act in so far as it relates to a case of non levy or short levy of duty must be exercised within the period of limitation prescribed in section 1315 of the Act
In short the appellant s contention is that the power of suo motu revision contained in section 1313 of the Act is subject to the provisions contained in section 1315 of the Act
The provisions contained in section 1313 of the Act at3 as follows The Central Government may of its own motion annual or modify any order passed under section 128 or section 130
 985 The provisions contained in section 1315 of the Act are as follows  Where the Central Government is of opinion that any duty or customs has not been levied or has been short levied no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the timelimit speci fied in section
 Section 28 of the Act provides for notice for payment of duties not levied short levied or erroneously refunded
Under section 28 when any duty has not been levied or has been short levied or erroneously refunded the proper offi cer may within six months from the relevant date serve notice on the person chargeable with the duty which has not been levied or which has been short levied or to whom the refund has erroneously been made requiring him to show cause why he should not pay  the amount specified in the notice
Counsel for the appellant extracted the provisions contained in sections 28 and 131 3 and 131 5 of the Act in support of the contention that any notice for suo motu revision by the Central Government in so far as it relates to a case of non levy or short levy of duty must be given within the period of six months from the date of levy
Counsel for the appellant further contended that if the Government wanted to revise orders for refund on the ground that there should not be any refund it would also be a case of short levy and therefore the limitation of six months as provided in section 28 of the Act should apply
Broadly stated Counsel for the appellant submitted that section 28 of the Act is a substantive provision relating to notice for non levy or short levy and section 1313 of the Act is a procedural section and power under section 1313 of the Act cannot be exercised in such a manner as to render section 28 of the Act nugatory
The alternative contention of Counsel for the appellant is that power under section 1313 of the Act is to be exercised within a reasonable time and the periods mentioned in section 131 of the Act supply the yard stick or give an indication of what is reasonable time
The Delhi High Court held that all the objections which the petitioner wishes to raise to the notice including the objections raised in the writ petition should be raised before the Central Government
The Delhi High Court there fore directed the Government to give a hearing to the appellant and further held that the Government should con sider all the objections
The Delhi High Court went on to say that the decision of the Government should be taken within three months unless the appellant himself took ad journment and caused delay in the disposal of the case
The Delhi High Court also said that if any money was to be refunded it should be refunded within two months from the date of the decision
The provisions contained in section 28 of the Act speak of non levy short levy and erroneous refund
The provi sions state that notice 986 of non levy short levy or erroneous refund should be given within six months from the relevant date
Section 283 states what the relevant date means
In the case of duty not levied the relevant date is the date on which the proper officer makes an order for the clearance of the goods
In a case where duty is provisionally assessed under section 18 of the Act the relevant date is the date of adjustment of duty after the final assessment
In a case where duty has been erroneously refunded the relevant date is the date of refund
any other case the relevant date is the date of payment of duty
The Additional Solicitor General contended that the provisions in section 28 of the Act indicated that any notice with regard to non levy short levy or erroneous refund require the person to show cause why he should not pay the amount specified in the notice
This being the case of erroneous refund the Additional Solicitor General con tended that the limitation would be six months from the date of actual refund
The order dated 20 April 1972 which is described as the order of refund was as follows  I therefore allow the appeals and direct that the goods be re assessed under Item 26 of the Indian Customs Tariff and the consequential refund of duty granted
 It may be stated here that Tariff Item 26 speaks of duty on metallic ore and Tariff Item 28 speaks of duty on Chemi cal and Pharmaceutical products
The appellant succeeded in appeal in obtaining an order of refund
It is an admitted feature of the case that refund has not in fact been made
Counsel for the appellant contended that even if refund has not been made the date of refund will be the relevant date and six months
would be calculated from 20 April 1972 when refund was ordered and therefore the notice dated 10 February 1975 will be hit by the provision of limitation of six months from the relevant date
The contention of the appellant is wrong
It is only where refund has in fact been made and money has been paid the relevant date will be six months from the date of actual payment for refund
The contention of the appellant that refund will also be a case of short levy is not correct
Section 28 speaks of three kinds of errors in regard to duties
One is non levy the second is short levy and the third is erroneous refund
Levy is linked to assessment
Section 17th of the Act speaks of assessment order
In the process of assessment two kinds of errors may occur
One is non levy and the other is short levy
Refund is dealt with in section 27 of the Act
The expression erroneously refunded means re funded by means of an order which is erroneously made
These are three categories of errors in regard to duties
The notice under section 28 of the Act speaks of demand for money to pay back and the notice is required to be given within six months from the relevant date
In the case of erroneous refund it would be six months from the date of actual refund
If no refund has in fact been made limita tion cannot be said to arise inasmuch as the relevant date under section 28 in the ease of erroneous refund 987 speaks of the date of refund
The order dated 20 April 1972 granted refund
Grant of refund is not actual refund
Chapter XV contains sections 128 to 131 Of the Act
Chapter XV speaks of Appeals and Revision
Section 128 relates to appears Section 130 deals with powers of revi sion of Board
Section 131 speaks of revision by Central Government
Revision can be asked for by the persons aggrieved by any order passed under section 128 or any order passed under section 130
Section 1312 provides limitation of six months for an application made under section 1311 of the Act
Once the provisions contained in section 1313 are attracted the Central Government may of its own motion annul or modify any order passed under section 128 or section 130
This provision is the power of Central Government to annul or modify any order
This power is exercised by the Central Government suo motu
Of course the power is to be exercised on giving notice to the person concerned
The provisions contained in section 1315 of the Act speak limitation only with regard to non levy or short levy
It is significant that section 1315 does not speak of any limitation in regard to revision by the Central Government of its own motion to annul or modify any order of erroneous refund of duty
The provisions contained in section 1315 with regard to non levy or short levy cannot be equated with erroneous refund inasmuch as the three categories of errors in the levy are dealt with separately
The appellants prayers for writs of Certiorari and mandamus are misconceived
There is no order either judicial or quasi Judicial which can attract certiorari
No mandamus can go because there is nothing which is required to be done or for borne under the Act
The issue of the notice in the present case requires the parties to represent their case
There is no scope for mandamus to do any duty or act under the statute
A writ of prohibition cannot be issued for the obvious reason that the Central Government has jurisdiction to revise
For the foregoing reasons the appeal is dismissed
The Central Government will hear the appeal on merits
In view of our conclusion that there is no bar of limitation in the present case it will not be open to the parties to take any plea of limitation
The Central Government will hear the matter as expeditiously as possible
In case the Cen tral Government will hold that the order of refund is valid the Central Government will pay the amount
We specify the period of two months from the date of the order as the period during which payment will be made
The parties will pay and bear their own costs
SR Appeal dismissed


Summary:
The appellant succeeded before the revisional authority and obtained the orders of refund of duty levied and col lected on the consignment of ten metric tonnes of Manganese dioxide
As no action was taken the appellant gave a notice on October 3 1974 us 80 CPC for institution of a suit for recovery of refund
On February 10 1975 the respondent gave a notice us 1313 of the to the appellant for suo motu revision of the order of the refund
The Writ Petition filed in the Delhi High Court impeaching the said order was dismissed directing the appel lant to raise all objections including those raised in the Writ Petition before the Central Government
Dismissing the appeal by special leave the Court Held 1 section 28 of the speaks of three kinds of errors in regard to duties
One is non levy the second is short levy and the third is erroneous refund
Levy is
linked to assessment
In the process of assessment two kinds of errors may occur
One is non levy and the other is short levy
The expression erroneously refunded means refunded by means of an order which is erroneously made
986 F G 2 section 131 5 of the does not speak of any limitation in regard to revision by the Central Government of its own motion to annul or modify any order of erroneous refund of duty
The provisions contained in Section 1315 with regard to non levy or short levy cannot be equated with erroneous refund in as much as the three categories of errors in the levy are dealt with in section 28
987 D E 3 Notice us 28 of the speaks of demand for money to pay back and the notice is required to be given within six months from the relevant date
In the case of erroneous refund it would be six months from the date of actual refund
If no refund has in fact been made limita tion cannot be said to arise inasmuch as the relevant date us 28 in the case of erroneous refund speaks of the date of refund
In the instant case the impugned order dated 20 April 1972 granted refund
Grant of refund is not actual refund
986 G H 987 A