TaxTMI 
TaxTMI 
1978 (11) TMI 64
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....The learned Judge quashed the order on the only ground that the revisional order was passed beyond the period of limitation provided under Section 131(5) of the Customs Act. The merits of the order were not gone into. The Union of India has attacked the reasoning and the conclusion of the learned Judge. Besides supporting this aspect of the case, Counsel for the 1st Respondent argued also on the merits to sustain Ex. P12 order and Counsel for the Union of India replied to the said argument. 2. The 1st Respondent is a firm which applied for the import of an Amerio Plates Freezer. Ex. P1 is the exemption certificate dated 16-3-1971 granted to the 1st Respondent by the Director of Industries and Commerce, Trivandrum. The description of good....
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.... follows: 3. Description of goods and numbers of packages covered Bill of Entry/shiping Bill. 1 case Freezer & Parts. * * * * * 5. Amount of refund claimed with details of working Rs. 19,270.05. This is a Freezing Plant hence as per Bond executed only 10% duty is leviable whereas CV duty also collected, which is now claimed." The Collector of Customs and Central Excise, Cochin, by Ex. P3 order held that the imported goods are parts of a freezing plant, and the freezing plant is assessable to duty at 10% ad valorem and further with countervailing duty at 40% plus 33-1/3% unde....
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....tored, the resultant order of the Government is either a case of short-levy or non-levy which : would be attracted by Section 131(5) of the Act. The learned Judge further recorded that on the facts of the case, there was no reason to exclude Section 131 (5) merely because action had been taken under Section 131 (3). Even to such an action according to the learned Judge, Sub-section (5) would apply, in case the conditions of that section are satisfied. The learned Judge held that they were so satisfied. 3. In order to appreciate the position, it is necessary to refer to the relevant statutory provisions. Section 28 in so far as it is material reads : We stress that three different types of actions have been dealt with by the Section, v....
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....vailing duty; but that would not make the order passed in revision any the less an order revising one for erroneous refund of duty. We are therefore of the opinion that the view taken by the learned Judge that the suo motu revisional power exercised in this case was beyond the time-limit provided in Section 131 (5) of the Act cannot be sustained, as that section itself has no application 4. Counsel for the Union of India rather belatedly brought to our notice the rent decision of the Supreme Court in Income-tax Commissioner v. J.K. Commercial Corporation (A.I.R. 1977 S.C. 456), which has covered the point directly in his favour. Paragraphs 22 and 23 of the judgment are appropriate, and are as follows: "22. Once the provisions containe....
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....ttracted. That item only requires that the refrigerators and other refrigerating appliances, which are ordinarily sold or offered for sale as ready assembled units". In other words the test is not actual sale as assembled unit, but whether the commodity in question is ordinarily sold as assembled unit. That focusses attention on the question what was the commodity imparted by the 1st Respondent? We have Ext. Pl exemption certificate in which the description of the goods was set out. We do not set much store by it, as it, was before the import itself. 6. Next we get Ex. P2 application for refund made by the 1st Respondent, columns 3 and 5 of which we have set out. In Column 3 the goods are described as one freezer and parts. The expressio....
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....icient to attract the countervailing duty. 7. Next, we refer to Ex. P7 show cause notice taken for action under Section 131 (3) of the Act. That action referred to the consignment imported by the 1st Respondent as Amerio Model 12 Refrigerant Double Contact Plate Freezer and indicated that although it was imported without certain parts such as Compressor etc. it was not exempt from countervailing duty under Section 2(A) of the Tariff Act, read with Item 29A(1) of the Central Excise Tariff. Ext. P12 a copy of the reply sent by the 1st Respondent, stated the Position thus : "The contact freezer cabinet as a component part for the initial setting up of a refrigeration unit and that vital parts like the condensing unit, compressor, c....