1976 Supreme(SC) 409

SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG AND P.N. SHINGHAL, JJ.
Geep Flashlight Industries Ltd., Appellant
Versus
Union of India and others, Respondents.
Civil Appeal No. 1830 of 1975,
D/- 28-10-1976.
Advocates appeared
Mr. Soli Sorabjee, Sr. Advocate, (M/s. Ravinder Narain, Talent Ansari, Shri Narain, Advocates with him), for appellant; Mr. V. P. Raman, Addl. Sol. Genl. for India, (M/s. S. K. Mehta and Mr. Girish Chandra, Advocates with him), for Respondents.

Headnote:

Civil Procedure Code - Section 80 – Constitution of India, 1950 - Article 226 - Suit for recovery of refund – Quash of order - Case of non-levy or short levy of duty - Appellant is a manufacture of dry battery cells - In October appellant received a consignment of ten metric tons of manganese dioxide - Assistance Collector levied duty on consignment under Tariff Item - Appellant preferred an appeal - Appellate Collector confirmed order of Assistant Collector - Appellant thereafter made an application to Provisional Authority - Revisional Authority held that goods should be assessed under Tariff Item and ordered refund of duty - Metallic manganese they ceased to qualify as an ore within the normally accepted sense of the term as in Item Indian Customs Tariff - Notice thereafter said therefore appears to Government that appellate order does not appear to be sustainable – Therefore in exercise of the powers under Section 131 (3) of Customs Act, 1962 Government of India proposes to annul the order in Appeal passed by Appellate Collector of Custom - Appellant made an application under Article 226 and moved High Court - Appellant in application asked for a writ in the nature of prohibition restraining Opposite party thereto from taking any proceeding pursuant to impugned notice - Appellant also asked for a writ of certiorari to quash the notice - Appellant also asked for a writ of mandamus not to withhold excess duty paid by the petitioner and ordered to be refunded – Held, Contention of 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 second is short-levy and the third is erroneous refund - Levy is linked to assessment - Section 17 of the Act speaks of assessment order - In process 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 Act - Expression erroneously refunded means of an order which is erroneously made - These are three categories of errors in regard to duties - Notice under Sec. 28 of 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 limitation cannot be said to arise inasmuch as relevant date under Section 28 in case of erroneous refund speaks of the date of refund - Order granted refund - Grant of refund is not actual refund - Chapter XV contains Sections 128 to 131 of Act - Chapter XV speaks of Appeals and Revision. Section 128 relates to appeals. Section 130 deals with powers of revision of Board - Section 131 speaks of revision by Central Government - Revision can be asked for by the person aggrieved by any order passed under Section 128 or any order passed under Section 130 - Section 131 (2) provides limitation of six months for an application made under Sec. 131 (1) of the Act - Once the provisions contained in Section 131 (3) are attracted 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 - Of course the power is to be exercised on giving notice to the person concerned - Provisions contained in Section 131 (5) of the Act speak of limitation only with regard to non- levy or short-levy - It is significant that Section 131 (5) does not speak of any limitation in regard to revision by Central Government of its own motion to annual or modify any order of erroneous refund of duty - Provisions contained in Section 131 (5) 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 - Appellants prayers for wits 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 forborne under the Act - Issue of the notice in the present case requires the parties to re-present 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 Central Government has jurisdiction to revise - Appeal is dismissed