S. Kalyanam, Member (J)

1. The above appeals are filed by the Collector of Central Excise, Bangalore, respectively against the orders of the Collector of Central Excise (Appeals), Madras, dated 25-1-1984 and 3-5-1983 referred to supra, rejecting the appeal filed by the Assistant Collector of Central Excise (Legal) Headquarters Office, Bangalore under Section 35E(4) of the Central Excises and Salt Act, 1944, hereinafter referred to as the Act, pursuant to the direction of the Collector of Central Excise, Bangalore, dated 5-12-1983 and issued under Section 35E(2) of the Act. Since a common question of law and interpretation arises in both the appeals, they are taken up together and disposed of by a common order.

2. The Collector of Central Excise, Bangalore, in exercise of his suo motu revisional powers under Section 35E(2) of the Act and on examination of the proceedings of the Assistant Collector of Central Excise, IDO, Mysore, respectively in C. No. V/17/18/26/82 Ins., dated 30-9-1983 and C. No. V/17/18/61/82 Ins., dated 10-2-1983 on grounds of legality, propriety and correctness, directed the Assistant Collector of Central Excise, Legal to file appeals before the Collector of Central Excise (Appeals), in terms of Section 35E(4) against erroneous refunds granted to the respondent herein. The appeals were dismissed by the Collector of Central Excise (Appeals) on grounds of limitation under Section 11A of the Act out of which the present appeals arise.

3. The learned Senior Departmental Representative submitted that the suo motu revisional powers exercisable by the Collector of Central Excise by calling for and examining the record of any proceedings in which an adjudicating authority subordinate to him has passed an order to satisfy himself as to the legality or propriety of such an order to are not controlled and subject to the period of limitation envisaged under Section 11A of the Act. The Senior Departmental Representative in expatiating on this submission urged that a superior authority in law is empowered to call for and examine the record of a subordinate officer for purposes of satisfying himself about the legality or correctness of any order or decision passed by him and this exercise of the power of correctional jurisdiction is controlled by the built in period of limitation incorporated in Section 35E(3) of the Act which provides for a period of two years for such exercise of powers. If the period of limitation incorporated in Section 11A were to be read into Section 35E(2) of the Act, it would render nugatory and otiose Sub-section (3) of Section 35E and such a construction is neither legal nor proper. The learned Senior Departmental Representative further submitted that the Assistant Collector of Central Excise as an adjudicating authority is empowered with a limited power of review in respect of duties not levied or not paid or short levied or short paid or erroneously refunded within a period of six months from the relevant date by serving a notice on the person chargeable with duty and an extended period of five years is provided for in case of fraud, collusion or wilful mis-statement or suppression of facts. If this power of the Assistant Collector vis-a-vis the power of limitation envisaged by Section 11A were to be read into Section 35E(2) of the Act, it would completely emasculate the revisional powers expressly conferred by Parliament on a Collector of Central Excise under Section 35E of the Act equating it to the limited power of review exercisable by a subordinate authority in terms of Section 11A, besides rendering the Sub-section (3) of Section 35E inoperative.

4. The learned Counsel for the respondent urged that the reasoning of the Collector of Central Excise (Appeals) under the impugned orders is correct and unless a notice has been served within six months from the relevant date on the person to whom refund has been erroneously made, the Department would become disentitled to claim the same by rea