Civil Appeal No 5014 of 1984
From the Judgment and Order dated 3984 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No 1604 of 1981 C in Order No 674 of 1984 C 101 A Subba Rao for the Appellant
Soli J Sorabjee Attorney General Ms Indu Malhotra and P Parmeshwaran for the Respondent
The Judgment of the Court was delivered by SAWANT J
The appellant imported Top Line Tube Winder Enddless Belts of the value of Rs31101 from the United Kingdom under the Bill of Entry dated 681979
The goods were assessed to duty under heading 4005163 at 40 plus countervailing duty at the rate of 25 under Item 16 A4 of the 
The appellant thereafter made an application for refund of the excess of duty so charged contending that the goods were in fact liable to be classi fied under heading 591617 and without countervailing duty
The Assistant Collector rejected the claim by his order of 12101979
Against it the appellants preferred an appeal under Section 128 of the hereinafter referred to as the Act  to the Appellate Collector of Customs
On May 2 1981 the Appellate Collector allowed the appeal holding that the goods were classifiable under head ing 591617 2
On November 21 1981 the Government issued a notice to the appellant under Section 13 13 of the Act asking him to show cause as to why the goods should not be classified under heading 3907 which attracted duty at 100 ad valorem and also to show cause as to why the order of 2nd May 1981 passed by the Appellate Collector should not be annulled
Against the said show cause notice the appellant preferred an appeal to CEGAT
The contention with regard to limitation was that the show cause notice was barred by limitation as laid down by sub section 5 of Section 131 read with Sec tion 28 of the Act which was six months from the date of short levy and in any case six months from the date of the Appellate Order
The Tribunal dismissed the appeal holding that the notice was in time and also further that the as sessment proposed to be made under heading 3907 was proper
It is against this decision of September 3 1984 of the Tribunal that the present appeal is preferred
Before us the only contention raised is that the show cause notice was barred by limitation and hence the Govern ment had no power to annul the Appellate Collector s Order under Section 1313 of the Act
The argument is that the limitation for initiating action under sub section 3 of Section 131 is laid down in sub section 5 102 thereof
For the cases in which the Central Government would initiate action under sub section 3 can only be the cases either of the absence of levy or of the short levy or of refund
In any of the said casethe limitation laid down under sub section 1 read with subsection 3 of Section 28 is six months
In the present case the levy of duty was on 681979 and the order of the Appellate Collector was of May 2 1981 while the show cause notice was issued on November 21 1981
In any case therefore the notice was beyond six months and hence barred by limitation
According to us this contention is not available to the appellant in view of the decision of this Court in Geep Flashlight Industries Ltd vs Union of India  Ors  in which it is held that the provisions of Section 13 15 and therefore the limitation laid down in Section 28 of the Act do not apply to the action taken by the Govern ment under Section 1313
The relevant observations are as follows Once the provisions contained in section 1313 are at tracted 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 speaks of 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 13 15 with regard to non levy or shortlevy cannot be equated with erroneous refund inasmuch as the three categories of errors in the levy are dealt with separately
Further even if it was held that the limitation as laid down in Section 28 would apply to the initiation of action under Section 1313 since the appellate order has only allowed the appeal of the appellant declaring him as being entitled to the refund and no refund has yet been made the action of the Government under Section 1313 is 103 clearly not barred by limitation
Section 28 of the Act states that when any duty has been erroneously refunded the proper Officer may within six months from the relevant date serve notice on the persons chargeable with the duty to whom the refund has erroneously been made requiring them to show cause why they should not pay the amount specified in the notice
Sub section 3 of Section 28 then defines the expression relevant date for the purposes of sub section 1
Clause c of the said sub section 3 states that the relevant date in a case where duty has been erroneously refunded means the date of refund
The decision in Geep Flashlight Industries Ltd case supra has while dealing with this very aspect pointed out that in the case of erroneous refund the notice under Section 28 of the Act has to be given within six months from the date of actual refund
If no refund has in fact been made limitation cannot be said to arise inasmuch as the relevant date under Section 28 in the case of erroneous refund speaks of the date of refund
The Order granting refund is not actual refund
Admittedly in the present case no refund has been made to the appellant under the Appellate Customs Order dated May 2 1981
Hence even if it is held that the provi sions of sub section 3 of Section 131 are governed by sub section 5 thereof and therefore the limitation laid down under Section 28 of the Act applies to the action of the Government under Section 1313 the present show cause notice is not barred by limitation
Even otherwise we are also of the view that the orders which are contemplated under sub Section 3 of Section 131 are orders passed under Section 128 or Section 130 only namely the order passed in appeal by the Appel late Collector or in revision by the Board respectively
Sub section 3 does not speak of any other order
That is clear from the language of the said sub section which reads as follows 3 The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130
It is therefore clear from the provisions of the said sub section that it does not give power to the Central Government to act suo motu to annul or modify an order passed by the original assessing authority
On the other hand the provisions of sub section 5 of Section 131 contemplate proceedings against actions of the original assessing authority which have resulted in either not levy ing or short levying the goods
That sub section by implica tion also covers cases of refunds
when goods are cleared initially under a provisional assessment and 104 the final assessment shows that the assessee is entitled to a refund of duty charged in excess earlier
But all the cases whether of non levy short levy or of refund which are contemplated in sub section 5 are cases arising out of the acts of omissions and commissions of the original assessing authority and it is when such orders passed by the original assessing authority which are sought to be annulled or modified that the provision of limitation contained in Section 28 applies
Thus the situations contemplated by sub section 3 and by sub section 5 are mutually exclusive in that whereas sub section 3 speaks of the annulment or modification of the appellate or revisional orders sub section5 speaks of the orders passed by the original assessing authority
Hence the limitation applies when Government seeks to annul or modify orders of the original assessing authority under sub section 5 and not when the Government takes action to annul or modify the appellate or revisional orders under sub section 3
This interpretation is also consistent with the provisions of sub sections 1 and 4 of Section 13 1
Sub section 1 speaks only of appellate and revisional orders passed under Sections 128 and 130 respectively and of no other order
Similarly clauses a and b of the sub section 4 make a distinction between the appellate and revisional orders passed under Sections 128 and 130 respec tively
Where an appellate or revisional order has already been passed enhancing any penalty or fine in lieu of confis cation or confiscating goods of greater value it does not permit Government to pass any order again enhancing the penalty or fine
It however permits passing of such order in any other case but within a period of one year from the date of the order sought to be annulled or modified
Hence the legislature has in Section 131 all along maintained the distinction between the orders passed under Sections 128 and 130 and other orders
Viewed from this angle also it is necessary to read the provisions of sub section 3 of Section 131 as being applicable only to orders passed under Sections 128 and 130 and the provisions of sub section 5 as being confined to orders other than those passed under Sections 128 and 130
Hence the conclusion is inescapable that the limita tion prescribed by Section 28 is applicable when under sub section 5 of Section 131 the Government seeks to annul or modify orders other than those passed under Sections 128 and 130
It is not applicable to the action taken under sub section 3 for annulling or modifying orders passed under Sections 128 and 130
Since in the present case the 105 impugned show cause notice is issued to annulmodify the order passed by the Appellate Customs under Section 128 it will have to be held that it is not barred by limitation
In this view of the matter the appeal fails and is dis missed with costs
PUNCHHI
J Has the Central Government violated the bar of limitation while exercising suo motu revisional powers under section 131 of the is the limited question which crops up for consideration in the instant appeal against the judgment and order of the Customs Excise  Gold Control Appellate Tribunal
New Delhi dated Septem ber 3 1984 passed in Appeal No CDSBT 16048 I C
The appellant imported a consignment of top line tube winder endless belts valued at Rs31101
The consignment came from the United Kingdom and was covered under a Bill of Entry dated 681979
The goods were assessed to duty under heading 4005163 at 40 plus counter vailing duty at the rate of 25 under Item 16 A4 of the 
The appellant lodged a refund claim with the Assistant Collector on grounds which are factual in nature asserting that the goods had not correctly been assessed to duty and that they should have been assessed under a different head ing 591617 of the 
On 12101979 the claim for refund was rejected by the Assistant Collector by an order
On appeal by the appellant the Appellate Col lector of Customs took a different view as to the nature of the consignment imported and assessed it to duty under heading 591617 allowing the appeal with consequential relief
On the report of the Collector of Customs the Gov ernment issued a suo motu show cause notice dated 21111981 prima facie being of the view that the Appellate Collector was not correct in classifying the goods under heading 591617 of the  as also that the original classification under heading 4005163 done by the Assistant Collector was also not in order
The matter thus was sent to the Customs Excise  Gold Control Appel late Tribunal New Delhi where the plea of limitation was raised by the appellant besides raising factual pleas with regard to the nature of the consignment and its liability to be classified under an appropriate head
The Tribunal 106 instead on facts classified the consignment as articles of plastic under heading 3907 of the and not under heading 591617 as done by the Appellate Collector and thus set aside the order of the Appellate Collector allowing the revision
The plea of time bar raised by the appellant was re pelled by the Tribunal in the following words On the question of time bar we find that the Appellate Collector issued the orders on 471981 the show cause notice was issued on 21111981 and served on the party on 24111981
The show cause notice has therefore been issued within the period of six months
Section 13 15 of the refers to a case of non levy and short levy
For those cases the time limit of section 128 would be applicable
Section 1313 provides for the Central Gov ernment to annul or modify any order passed under section 128 or 130
The Supreme Court in 1983 ELT 1596 held as follows  The provisions contained in section 13 15 of the Act speak of 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 or erroneous refund of duty
The provisions contained in sec tion 13 15 with regard to non levy or short levy cannot be equated with erroneous refund inasmuch as the three catego ries of errors in the levy are dealt with separately  That was a case of refund
In 1984  16 ELT 332 Collector of Customs Bombay vs Nav Bharat Enterprises New Delhi  it was held that section 13 13 of the empower the Central Government to annul or modify any order passed under that Act and that the time limit provided in section 1315 would not be applicable to the notice issued under 1313
Further relevant date  as provided under the third proviso to section 362 will be computed from the date of passing of the Appellate Order and not from the date of passing the order by the original assessing authority
The show cause notice is therefore in time 107 Learned counsel for the appellant has confined this appeal to the question of limitation
The fact that the consignment was classifiable under head 3907 of the Customs Tariff Act 1979 remains in these circumstances unques tioned
Section 131 of the is as follows 131 REVISION BY CENTRAL GOVERNMENT 1 The Central Government may on the application of any person aggrieved by a any order passed under section 128 or b any order passed under section 130 otherwise than on the application of any aggrieved person or c any order passed on the application of any aggrieved person under section 130 where the order is of the nature referred to in either of the provisions to sub section 1 of that section annul or modify such order
2 An application under sub section 1 shall be made within six months from the date of the communication to the applicant of the order against which the application is being made Provided that the Central Government may if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of six months allow it to be presented within a further period of six months
3 The Central Government may of its own motion annul or modify any order passed under section 128 or section 130
4 No order enhancing any penalty or fine in lieu of con fiscation or confiscating goods of greater value shall be passed under this Section a in any case in which an order passed under 108 section 128 or section 130 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value and b in any other case unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified
5 Where the Central Government is of opinion that any duty of customs has not been levied or has been shortlevied 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 time limit specified in section 28 The Tribunal seems to take the view that sub section 3 of section 131 if employed eclipses sub section 5 of sec tion 131
In other words the Tribunal seemingly is of the view that when the Central Government on its own motion proposes to annul or modify any order passed under section 128 or section 130 then it is not lettered by the time limit specified in section 28 even though it entertains the opin ion that any duty of customs has either not been levied or has been shortlevied
This approach appears to us to be wholly erroneous
There is nothing in the language of sub section 3 to suggest that it over powers or renders otiose sub section 5
Both the sub sections need not militate against each other components as they are of the singular power conferred by the legislature on the Central Government for revision
The harmonious way to read these sub sections would be that the Central Government is empowered on its own motion to annul or modify any order passed under section 128 or section 130 but if it is an order whereby any duty of customs has either not been levied or has been short levied the Central Government can levy or enhance the duty by giving the person affected by the proposed order a notice to show cause against it but within the time limit specified in section 28 which is six months from the date of the order
Section 28 envisages three kinds of errors in regard to custom duties
One is non levy
This means that the goods were not classified to duty whereas they could be
The second is short levy
In this could be included a case in which the goods could be classified in one Entry but were erroneously classified under another Entry resulting in shortlevy of customs duty or the like
The third is the case of erroneous refund
This category springs up in the process of assessment only where two kinds of errors
ie non levy or short levy may occur and lead to an erroneous refund
Since levy is linked to assessment a case 109 for refund may arise which may be erroneous
These are the three categories of known errors in regard to duties
In Geep Flashlight Industries Ltd vs Union of India and Others   this Court had occasion to deal with a case of erroneous refund and while examining the scope of section 28 of the Act ruled as follows The provisions contained in section 28 of the Act speak of non levy short levy and erroneous refund
The provisions state that notice 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 provisional ly assessed under section 18 of the Act the relevant date is the date of adjustment of duty after the final assess ment
In a case where duty has been erroneously refunded the relevant date is the date of refund
In any other case the relevant date is the date of payment of duty
 It can thus be clearly gathered that in cases of duty not levied or short levied the relevant date is the date on which the concerned officer makes some orders for the clear ance of the goods on payment of no duty or the date of adjustment of duty on framing the final assessment as the case may be
Now reverting to the facts of the instant case it is evident that the goods were classified and assessed to duty under one heading say A on 681979 whereafter claim for refund was made by the appellant which was rejected by the Assistant Collector on 12101979
The exercise of the Assistant Collector in levying duty under heading A when it should have been levied under another heading say C de spite the appellant s claim that it should be still under another heading say B was a case of short levy in so far as the goods were classified as attracting lesser duty under heading A whereas higher duty should have been attracted on classifying it under heading C
So the orders of levy of duty had two facets
The duty from the point of view of the appellant had been excessively levied necessitating him to challenge the same and seek refund
On the other hand from the point of view of the revenue the duty had been short levied giving rise cause to have it levied under proper heading
If these two facets are understood in the right perspective it was incumbent on the Central Government to exercise its suo motu power under sub section 3 read with sub section 5 of section 131 within six months from 681979 the date when 110 the duty was short levied and undeniably the Central Govern ment did not take such timely step even though it had a cause to do so
The appellant however made claim for the refund of the excess duty levied taking shelter under anoth er heading and on its refusal by the Assistant Collector on 12101979 had its appeal accepted on 251981 from the Appellate Collector who ordered refund
The Central Govern ment then got a cause to take suo motu action under section 13 13 of the to annual or modify the order of the Appellate Collector or the actual refund itself under that order in accordance with Geep Flashlight Industries case supra
It being a case of erroneous refund sub section 3 of section 131 was attracted and not sub section 5 of section 131 as at that point of time it was not a case of non levy or short levy and these two catego ries of errors could not be equated with the error of erro neous refund inasmuch as these three categories of errors are treated separately in the scheme of things
Merely because the Central Government had the power to suo motu revise the orders of refund passed by Appellate Collector it does not follow a fortiori that it had the vower to revise the orders of short levy at that stage
The ultimate analy sis is that if there was an error of short levy in the order of the Assistant Collector in classifying goods at A instead of C as claimed by the revenue and not classifying them at B as claimed by the importer then on the grant of relief by the Appellate Collector classifying them under heading B can at best give occasion to the Central Government to annul or modify the classification brought under head B and so as to leave it classified at heading A but could not have it re classified under heading C unless the exercise was under taken within the period of limitation prescribed under section 28 as required under sub section 5 of section 131 of the 
The error committed by the Tribu nal for the view afore expressed is so patent that it cannot be allowed to go uncorrected as a tolerable error
Inevitably this appeal is to be and is hereby allowed
modifying the orders of the Tribunal passed in Appeal No CDSBT 160481 C so as to revive the order of the origi nal assessment dated 681979 and the order of the Assistant Collector of Customs Madras dated 12101979 keeping upset the orders dated 251981 of the Appellate Collector of Customs Madras passed in Appeal No C 32 1280
The appellant shall have their costs
ORDER According to the decision of the majority
the appeal stands dismissed with costs


Summary:
The respondents who were working as Constables in Delhi Police and whose services were terminated for participating in an agitation filed writ petitions before the High Court praying for quashing the order of termination and for reinstatement deeming them to have been in service through out and awarding consequential benefits
Relying on the decision of the High Court as affirmed by the Supreme Court in the case of some Constables whose services were similarly terminated the Central Administrative Tribunal to whom the cases were transferred held that the respond ents were entitled to be deemed to have been in service
Dismissing the appeals by the Administration this Court HELD All the respondents should be deemed to be in service
All of them except respondent No 24 who has expired and whose widow has already been paid back wages should file affidavits stating whether they had been gain fully employed or not during the period of the termination of service and if so employed they will state further in the affidavits the period of such employment
The appellants may verify the same and will be at liberty to deduct the pay and allowances during the period of such gainful employment while determining the arrears of salary and allowances for the period of termination
However for the purposes of seniority promotion and retiral benefits the entire period between termination and reinstatement shall be taken into account
95E F