judgement:
Civil Appeal Nos. 33763382 of 1988.
From the Judgment and Order dated 26.11.1987 of the Central Administrative Tribunal.
Delhi in T. Nos. 950, 961, 972, 986, 1049, 94 1198 of 1985 and T. No. 383 of 1986.
B.B. Barua, Aruneshwar Gupta and Ms. A. Subhashini for the Appellants.
Juse P. Verghese, K.N. Rai and N.N Sharma for the Re spondents.
These appeals arose out of the judgment and order dated November 26, 1987 passed by the Central Adminis trative Tribunal, Principal Bench, Delhi directing that the petitioners (respondents in these appeals) will be entitled to the same relief as was granted to the petitioners by Anand, J. in the writ petitions CWP Nos.
278 of 1978 and 937 of 1978.
The matrix of the case, in short, is that the services of the respondents who were appointed as constables in Delhi Police in the years 1964 66 were terminated because of their participation in the agitation along with other police constables in April 1967.
In view of the public controversy and in deference to the views expressed in Parliament, a large number of agitating constables were taken back in service as fresh entrants.
Later, in view of the assurance given in the Parliament by the then Home Minister, prosecu tions were withdrawn and the dismissed constables were reinducted into service.
Some of the dismissed constables filed Civil Writ Petition Nos. 26/69 and 106/70 in the High Court of Delhi and the High Court by its judgment dated October 1, 1975 quashed the order of termination and the petitioners in that case were declared to be throughout in service.
The Police Administration preferred separate ap peals being LPA Nos. 24 and 25 of 1976.
Both these appeals were dismissed as barred by time and the judgment of the High Court dated October 1, 1975 became final.
Subsequently, some other constables whose services were similarly terminated but were not reinstated in service even as fresh entrants, filed writ petitions in the High Court of Delhi being CWP Nos. 270 and 937 of 1978.
These writ peti tions were heard by Anand, J. who rejected the contention raised by the respondents in the writ petitions regarding the delay and latches in moving the writ petitions, allowed the writ petitions quashing the impugned order of termina tion declaring that the petitioners will be deemed to have been in service and would be treated as such subject to certain conditions.
The Police 95 Administration filed LPA against this judgment which was dismissed on August 29, 1983.
Thereafter the respondents herein filed the writ petitions in the High Court against the order of termination of their services praying for quashing of the orders of termination and for reinstating them in service with effect from the respective dates of their termination of services and to treat them as being in service throughout and to award them all consequential benefits.
These writ petitions were subsequently transferred to the Central Administrative Tribunal, Delhi.
The Tribunal while rejecting the plea of the respondents that the peti tioners should be denied any relief because of delay and latches held that the claims of the petitioners (respondents in these appeals) was identical to the claim of the peti tioners in CWP Nos. 270 and 937 of 1978 whose petitions were allowed by the High Court of Delhi.
The Tribunal further held that the petitioners were entitled to the same relief as was granted to the petitioners by Anand, J. in C W P Nos.
270 and 937 of 1978.
Against this judgment and order the instant appeals on leave have been filed before this Court.
We have heard learned counsel for the parties.
Consider ing facts and circumstances as well as the judgment rendered by Anand J. in CWP Nos. 270 and 937 of 1978, we dismiss the appeals and confirm the judgment and order dated November 26, 1987 of the Tribunal with the modification that the respondents, excepting respondent No. 24, Kanwal Singh who is dead, will file affidavits stating whether they had been gainfully employed or not during the period of the termina tion of service and if so employed, they will state further in the affidavits the period of such employment.
The appel lants may verify the same and will be at liberty to deduct the pay and allowances during the period such gainful em ployment while determining the arrears of salary and allow ances for the period of termination.
We, however, make it clear that for the purposes of seniority, promotion and retiral benefits, the entire period between termination and reinstatement shall be taken into account.
It has been stated by the learned counsel for the appel lants that all the respondents have already been reinstated in service and they are now working.
The respondent No. 24, however, has expired and the back wages have already been paid to his widow.
In the facts circumstances of the case there will be no order as to costs.
N.P.V. Appeals dis missed.

dataset_name: IN-Abs

summary/full:
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]


judgement:
N: Writ Petition (Crl.) No. 247 of 1990.
(Under Article 32 of the Constitution of India).
S.S. Ray, Vijay Bahuguna, S.K. Gambhir, Sunil Kr.
Jain and Vijay Hansaria for the Petitioner.
Ashok Desai, Solicitor General, P parmeshwaran and A. Subba Rao for the Respondents.
The order of detention was issued by Nisha Sahai Achuthan, Joint Secretary to the Government of India who was specially empowered under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act and it recited that with a view to preventing the peti tioner from engaging in abetting and transportation of narcotic drugs, the said Sayyed Farook Mohd. @ Farooq @ Sayyed Farooq Isamuddin @ Anand be detained and kept in custody in the Yervada Central Prison, Pune.
The grounds of detention were also served on the same day i.e. February 15, 1990 immediately after his arrest by the Customs Authori ties.
On July 19, 1989 the staff of the Preventive Collector ate Customs, Bombay impounded two fiat cars bearing Nos.
GJV 5440 and MHY 2625.
The drivers of the said cars namely Aslam Mohammad Nazir and Mohammad Yakub Sheikh were apprehended.
On search of the two cars, 100 packets of brown coloured powder purporting to be narcotic drug of Pakistan origin was found out of the dickies of the cars.
The narcotic drug recovered from the dickies of the said cars weighed 100 kgs.
and its value in the market is about 2.34 crores.
Car No. GJV 5440 belonged to the petitioner detenu, Syed Farooq Mohammad and the other car No. MHY 2625 belonged to one C.P. Reddy, an Officer of international airport who was also apprehended and his statement u/s 108 of the was recorded.
It was revealed from his statement that this car was also used for transporting heroin along with petition er 's car.
The statements of Aslam Mohammad Nazir and Moham mad Yakub Sheikh who were apprehended as well as the state ment of other person i.e. Mohd. Azam Khan @ Wali Mohd. Khan @ Hameed Khan were also recorded u/s 108 of the by the Customs Officials.
From these statements it appeared that these persons were known to the detenu and they used to visit often the hotel 'Fisherman ' at Worli for disco.
The detenu i.e. Farooq Mohammad also used to go for disco in the said hotel 'Fisherman ' at Worli.
It has been stated by Aslam Mohammad Nazir that on July 19, 1989 he was sitting in room No. 106, 2nd Floor, Kali Building near Burtan apartment, Bombay Central (residence of the detenu) along with his friend, Mohd. Yakub Sheikh, driver of the other car.
Hameed also came there to meet Farooq Mohammad.
Hameed asked him and Mohd. Yakub Sheikh to go along with him to Kalina.
He told them that a truck had come to Kalina with some packets of contraband goods and that they were to take those packets near Jaslok hospital Thereafter, he took two fiat cars beating registration Nos.
GJV 5440 and MHY 2625 from Farooq.
He gave the keys of car No. GJV 5440 to him and car No. MID/2625 to Mohd. Yakub.
245 Thereafter, they drove those two cars to Kalina as per Hameed 's instructions and Hameed led them in a red maruti car bearing No. BLB 7445 where Hameed showed them one truck wherefrom four gunny bags were unloaded and kept in the dickies of the above said two cars.
It further appears from his statement that as per Hameed 's instructions after the cars were parked near Jaslok Hospital, they handed over the keys of both the cars to Hameed and he told them to contact him again in the evening on telephone No. 367373 of R.K. Hotel From Farooq 's place they contacted him over the telephone.
Hameed told them to wait there and he was coming there.
Thereafter Hameed took them in the Maruti Car to a place near Tejpal Road, Gowalia Tank.
There he showed them the same two fiat cars bearing Nos.
GJV 5440 and MHY 2625.
Hameed gave the keys of the car No. GJV 5440 to him and car No. MHY 2625 to Mohd. Yakub Sheikh and asked them to drive the said two cars following his car.
Similar statement was made by Mohd Yakub Sheikh which was recorded by the Customs Officials.
It has also been stated by them that they were told by Hameed that each of them will get Rs.5,000 as monetary consideration.
Yakub also stated that similar jobs have been done by him on 4 5 occa sions and he received Rs.5,000 each time from Hameed.
From the statement of Hameed recorded by the Customs Officials, it appears that on July 19, 1989 afternoon he collected two drivers namely Aslam Mohd Nazir and Mohd. Yakub Sheikh and two fiat cars from Farooq of Bombay Central.
This Farooq was introduced to him by Mohd. Nasir, a narcotic drug dealer who is now detained m ' Rajasthan in connection with a drug case.
The detaining authority searched the residence of the detenu on July 20, 1989 but nothing incriminating could be found therefrom.
After recording the statements of these persons and examining and considering the test reports dated October 13, 1989, September 29, 1989 and November 15, 1989 which mentioned that the brown powder contained in those 100 packets is narcotic drug coming within the Narcotic Drugs and Psychotropic Substances Act, the impugned order of detention was made on December 20, 1989 and the petitioner was arrested and detained on service of the order of deten tion on February 15, 1990.
The challenge to the detention order had been made in the instant writ petition principally on four grounds which are as under: ( 1 ) The impugned order of detention has been passed rely ing on 246 the incident which is absolutely stale as the incident is dated July 19, 1989 whereas the impugned order has been passed on December 20, 1989.
(2) The statements of the three persons as recorded in the form of statement under section 108 of the came to the respondents on July 20, 1989.
The order should have been passed immediately on 20th July, 1989 but the order has been passed on December 20, 1989 i.e. after five months.
The impugned order, it is therefore contended, is illegal and has been passed on stale ground.
(3) Since no order of preventive detention has been passed against C.P. Reddy on the same evidence, no order should have been passed against the petitioner as his involvement is of the same nature and to the same extent as that of C.P. Reddy.
(4) Assuming that the order rejecting bail application has been considered though not evident from the grounds of detention supplied, yet the same has not been supplied to the petitioner.
This indicates that a relevant document has not been supplied to the petitioner which affected his right of effective representation guaranteed under Article 22(5) of the Constitution.
The petitioner after grant of bail by an order of this Court appeared before the respondents and applied for making statement u/s 108 of the .
He was arrested and the order of detention was served on him.
This material aspect should have been considered before serving the impugned order.
As regards the first ground, the counsel for the peti tioner has vehemently urged before this Court that the statements of the two persons i.e. Aslam Mohd. Nazir and Mohd. Yakub Sheikh the drivers of the said two cars handed over by the petitioner for carrying narcotic drugs and also the statement of Hameed, did not implicate the petitioner in the transportation and smuggling of the drugs and as such there was non application of mind on the part of the detain ing authority in clamping the order of detention on the petitioner.
The impugned order of detention is, therefore, vitiated by non application of mind.
The learned counsel referred to certain portions of the statements recorded by the Customs Officials u/s 108 of the and con tended with great emphasis that there was nothing to say that the petitioner was implicated in the smuggling or transportation of the heroin which has been seized from the dickies of the two cars.
247 This contention of the learned counsel is totally devoid of merit in as much as the statements of these three persons as recorded by the Customs Officials u/s 108 of the clearly implicate the petitioner who knowing fully that these two cars will be used for the purpose of transporta tion of prohibited drugs i.e. heroin and for selling of the same, handed over the keys of the two cars to the said two drivers who were sitting at his residence with Hameed on the asking of Hameed for carrying the contraband goods.
In these circumstances, it is meaningless to argue that the state ments of these three persons did not implicate the petition er.
All the aforesaid three persons were well known to the petitioner and were sitting at the petitioner 's residence, they were given the keys of the petitioner 's car as well as the keys of the car of C.P. Reddy which was brought to his garrage for repairs by one Ravi Poojari through whom C.P. Reddy sent his car for repairs.
The petitioner knowing fully well that these two cars will be used for the purpose of transporting contraband goods i.e. heroin from the truck stationed at Kalina from which four gunny bags containing the said heroin were unloaded and placed in the dickies of these two cars, handed over the keys of the cars.
It is also evident from these statements recorded by the Customs Offi cials that the petitioner along with those three persons used to visit hotel 'Fisherman ' for disco regularly and they were well known to the petitioner In these circumstances, it is beyond pale of any doubt that the petitioner knowing fully well that these two cars will be used for transporting contraband goods, i.e. heroin, handed over the keys of the cars for the said purpose.
Therefore, this challenge is wholly without any basis.
The next ground of challenge is that the cars were impounded and the contraband goods were seized on July 19, 1989 and the statements of these three persons were recorded by the Customs Officials on July 20, 1989 and the residen tial premises of the detenu were searched on July 20, 1989 but no incriminatory articles ' were found.
The detaining authority made inordinate delay in passing the impugned.order of detention against the detenu as late as on December 20, 1989 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub stances Act, 1988 to be hereinafter referred to as the 'said Act '.
It has been submitted that if there was any urgent necessity to prevent the petitioner, the order should have been passed immediately on 20th July, 1989 but it has been passed on December 20, 1989 i.e. after five months.
The impugned order is, therefore, illegal being passed on stale ground.
This contention is, in our considered opinion, devoid of any 248 substance as we have stated hereinbefore that the two cars were impounded on July 19, 1989 and brown sugar weighing 100 kgs.
was recovered from the dickies of these two cars on that day.
The said three persons i.e. Aslam Mohd. Nazir, Mohammad Yakub Sheikh and Hameed were examined and their statements were recorded by the Customs Officials on the next day i.e. July 20, 1989.
It is also evident that samples of the said contraband drugs were taken from each of the 100 packets and the same were sent for chemical examination.
The test reports dated October 13, 1989, September 29, 1989 and November 15, 1989 were received by the Customs Department and the Customs Officials screened all these things and the detaining authority after considering all these, passed the order of detention on December 20, 1989.
In these circum stances, it cannot be said that the delay of five months in making the impugned order of detention rendered the deten tion illegal and bad as it was made on stale ground.
The detention order has been made with promptitude considering the relevant and vital facts proximate to the passing of the impugned order of detention.
This ground of challenge is, therefore, totally unsustainable.
The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the de taining authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced.
This ground is without any substance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was con sidered by the detaining authority before passing the im pugned order of detention and as such this being not re ferred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention.
Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents re ferred to in the grounds of detention and which are consid ered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.
The said document was not considered by the detaining authority in coming to his subjective satisfaction and in making the impugned order of detention.
The non furnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the detenu 's right to make an effective representation in compliance with the provi sions of Article 22(5) of 249 the Constitution of India.
This ground, therefore, is wholly untenable.
It has been contented in this connection by referring to the order made by this Court on January 22, 1990 in the Special Leave Petition filed by the petitioner before this Court against the rejection of his application of anticipa tory bail whereon this Court made an interim order while issuing show cause notice on the Special Leave Petition and directing that in the meantime the petitioner shall not be arrested, that the impugned order of detention is illegal.
This order was made in the Special Leave Petition which did not challenge the impugned order of detention but questioned the rejection of the application for anticipatory bail.
The order of detention was made on December 20, 1989 i.e. prior to the passing of the said order dated January 22, 1990.
The said order of this Court has, therefore, nothing to do with the subjective satisfaction arrived at by the detaining authority in passing the order of detention in question.
It has been urged in this connection that the facts in between the passing of the detention order and implementing the detention order have to be taken into account for consider ing whether the detention order should be served on the detenu even after passing of the order by this Court dated January 22, 1990 stating that the petitioner shall not be arrested in the meantime.
The counsel for the petitioner referred the case of Binod Singh vs District Magistrate, Dhanbad, Bihar and Ors., Wherein the detenu was served with the order of detention u/s 3(2) of the National Scurity Act while he was in jail custody in connection with the criminal charge u/s 302 I.P.C.
The question arose whether in such cases where the detention order which was passed before the detenu surrendered before the Court and was taken into custody in a criminal case, should be served on the detenu after he has surrendered in the criminal case and was in jail as an under trial prison er.
It has been held by this Court that: " . . the power of directing preventive detention given to the appropriate ,authorities must be exercised in excep tional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection.
There must be awareness of the facts necessitating preventive custody of a person for social defence.
If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised . . " 250 This ruling as well as the ruling in Suraj Pal Sahu vs State of Maharashtra and Ors., ; relied upon by the counsel for the petitioner have no application to the instant case in as much as in the instant case the detenu was not arrested and imprisoned in jail till February 15, 1990 when the order of detention was served on him and he was arrested by the Customs Authorities.
Considering all these, this ground of challenge is also wholly untenable.
The next ground of challenge is that the detenu appeared before the respondents and applied to them to record his statement u/s 108 of the .
He was then arrested and the order of detention was served on him.
It is relevant to mention in this connection the averments made in para 10 of the counter affidavit filed on behalf of the respondents which is to the effect that in fact, when the petitioner presented himself, his statement was recorded on February 15, 1990 and it was only after the recording of the state ment that the petitioner was detained in pursuance of the detention order.
It has also been stated in para 11 of the said affidavit that there existed sufficient grounds which impelled the detaining authority to pass the detention order against the petitioner.
It has also been stated in para 12 of the said affidavit that a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act, 1988 can be legally issued even if there is a single and solitary case against a person.
It has also been stated that the detaining authority carefully scrutinised all the relevant documents and facts of the case and arrived at his subjective satisfaction that preventive order of detention of the petitioner is necessary to prevent him from smuggling and transporting contraband goods and as such the impugned order of detention is not at all illegal or bad and the same is not vitiated by non application of mind or non consideration of relevant materials.
This ground, therefore, is not sustainable.
The last ground of challenge is that there has been inordinate delay in arresting the detenu and in serving the detention order i.e. on February 15, 1990 after a lapse of 1 month and 25 days and no serious attempt was made to arrest the petitioner and to serve the order of detention on him in accordance with the provisions of Section 8 of the said Act which specially provides for enforcing the provisions of Section 82, 83, 84 and 85 of the Code of Criminal Procedure.
It has been urged in this connection that this unusual delay in arresting the petitioner shows that there was no real and genuine apprehension in the mind of the detaining authority regarding the necessity of detention of the petitioner and as such continued detention of the petitioner is 251 illegal and contrary to law.
It is apropos to refer in this connection to the averments made on behalf of the respond ents in para 7 of the counter affidavit.
It has been stated therein that the Department served two notices, one of which was accepted by his mother and the second by his brother, Nizamuddin for handing over the same to the petitioner, as the petitioner was not available in the house.
It has been submitted that the petitioner deliberately avoided making himself available to the Department and thus delayed comple tion of investigation of the case.
Instead of appearing before the Department, the petitioner applied to the Ses sions Judge for anticipatory bail which was rejected on 5.1.1990.
Thereafter, the petitioner approached this Court for anticipatory bail, which was granted on 22.1.1990.
It is, therefore, evident that the petitioner absconded and tried to evade arrest pursuant to the order of detention even though he knew the passing of such an order by the detaining authority.
It is relevant to mention here the observations of this Court in Shafiq Ahmad vs District Magistrate, Meerut and Ors., [1989] 4 SCC 556 to the follow ing effect: " . .
We are, however, unable to accept this contention.
If in a situation the person concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad." In Bhawarlal Ganeshmalji vs State of Tamil Nadu & Anr., ; an order of detention was made against the appellant u/s 3(1) of COFEPOSA Act in December, 1974.
It could not be executed because the detenu was absconding and could not be apprehended despite a proclamation made under Section 7 of the Act.
More than three years after the order was passed, the appellant surrendered in February, 1978.
It was held that there must be a 'live and proximate link ' between the grounds of detention and the avowed purpose of detention.
But in appropriate cases the Court can assume that the link is 'snapped ' if there is a long and unex plained delay between the date of the order of detention and the arrest of the detenu.
Where the delay is not only ade quately explained but is found to be the result of the detenu 's recalcitrant or retractory conduct in evading arrest, there is warrant to consider the 'link ' not snapped but strengthened.
It was, therefore, held that the delay in serving the order of detention on the detenu does not viti ate the order.
In the instant case, it has been clearly averred in the affidavit that two notices were served, one on the petition er 's mother and another 252 on the petitioner 's brother directing the petitioner to appear before the detaining authority.
The petitioner, it has been stated, has intentionally absconded and thereby evaded arrest.
These averments have not been denied by the petitioner.
In these circumstances it cannot be said that the delay was not explained and the rink between the grounds of detention and the avowed purpose of detention has been snapped.
Reference may also be made in this connection to the decision in T.A. Abdul Rahman vs State of Kerala and Ors., ; This ground of challenge is, there fore, devoid of any merit.
It has also been submitted on behalf of the petitioner that the representation made by the detenu on February 28, 1990 both to the Chairman, Advisory Board as well as to the Central Government were not disposed of till March 29, 1990 when the said representation was rejected by the Central Government.
It has been submitted that this long delay of one month made the continued detention of the petitioner invalid and illegal.
The counsel for the respondents has produced before this Court the relevant papers from which it is evident that after receipt of the representation of the petitioner, it was sent to the detaining authority for his comments and immediately after the comments of the detaining authority were received the same were processed and put up before the Minister concerned who rejected the representa tion after considering the comments of the detaining author ity and the State Government.
It has been urged on behalf of the petitioner that the comments were not duly considered.
This submission is not at all tenable in as much as it is evident from the relevant papers produced before this court that the Central Government passed the order after consider ing the comments of the detaining authority.
So this submis sion is without any substance and the same is rejected.
It has been further submitted that the counter affidavit was sworn not by the detaining authority but by one Shri A.K. Roy, Under Secretary in the Ministry of Finance, De partment of Revenue, New Delhi and as such this affidavit cannot be taken into consideration and the averments made therein are not relevant to explain the unusual delay in serving the order of detention as well as in rejecting the representation.
In this connection some rulings of this Court have been cited at the bar.
In Madan LaI Anand vs Union of India and Ors.
, ; the counter affidavit filed on behalf of the respondents had been af firmed by Kuldip Singh, Under Secretary to the Government and not by the detaining authority himself.
It was urged that the counter affidavit being not sworn by the detaining authority, the averments made therein should not be taken notice of.
It was held 253 that there being no personal allegation of mala fide or bias made by the detenu against the detaining authority in per son, the omission to file affidavit in reply by itself is no ground to sustain the allegation of mala fides or non appli cation of mind.
Similar observation has been made by this Court in Mohinuddin vs District Magistrate, Beed and Ors.
, ; which is to the following effect: " . .
In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Government under Article 166 of the Constitution to pass orders on behalf of the govern ment in such matters.
" Reference has also been made therein to the cases of Niran jan Singh vs State of Madhya Pradesh, ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar, ; and Mohd. Alam vs State of West Bengal, ; In the instant case, the counter affidavit has been filed by Shri A.K. Roy, Under Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi al though the order of detention was made by Nisha Sahai Achu than, Joint Secretary to the Government of India, Ministry of Finance.
It is evident that the said Under Secretary was dealing with the papers relating to the particular order of detention and he placed those papers before the Minister concerned.
In these circumstances, the counter affidavit filed on behalf of the respondents cannot but be considered and there is no allegation of mala fide or malice or extra neous consideration personally against the detaining author ity in making the impugned order of detention.
This conten tion is, therefore, not tenable.
254 In the premises aforesaid we dismiss the writ petition and hold that the impugned order of detention is quite in accordance with law and the same is valid.
The observations made herein are confined to this application.
T.N.A. Petition dismissed.

summary/full:
On July 19, 1989, the Customs Department seized narcotic drugs from two cars one belonging to the petitioner detenu and the other to his associate.
The statements of the driv ers were recorded under Section 108 of the on the very next day.
Reports of the chemical examination of the seized drugs confirmed that they were narcoting drugs under the prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988.
Accordingly, with a view to preventing the petitioner from engaging in abetting and transportation of narcotic drugs the detaining authority passed a detention order under Section 3(1) of the Act on 20th December, 1989 i.e. after about 5 months of seizure of the narcotic drugs.
But the petitioner was arrested and detained on service of the order of detention on 15th Febru ary, 1990.
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending; (1) that it was illegal because 241 (a) there was inordinate delay in serving the detention order and arresting the detenu; (b) it was passed on stale ground i.e. after five months of the seizure of narcotic drugs; and (c) there was long delay in disposing the dete nu 's representation; (2) the non supply of relevant docu ments i.e. bail application and the order made thereon to the detenu seriously prejudiced his right to make effective representation under Article 22(5) of the Constitution; (3) the averments made in the counter affidavit cannot be taken into consideration because it was not sworn by the detaining authority himself and (4) the detention order was vitiated for non application of mind.
Dismissing the writ petition, this Court, HELD: 1.
There must be a 'live and proximate link ' between the grounds of detention and the avowed purpose of detention.
But In appropriate cases the Court can assume that the link is 'snapped ' if there is a long and unex plained delay between the date of the order of detention and the arrest of the detenu.
Where the delay is not only ade quately explained but is found to be the result of the detenu 's recalcitrant or refractory conduct in evading arrest, there is warrant to consider the 'link ' not snapped but strengthened [25 IF G] 2.1 In the instant case, the averments that the Depart ment served two notices one on the petitioner 's mother and another on his brother directing him to appear before the detaining authority have not been denied by the petitioner.
Instead he intentionally absconded and thereby evaded ar rest.
Therefore, it cannot be said that the delay was not explained and the link between the grounds of detention and the avowed purpose of detention has been snapped.
[251H; 252A B] Shafiq Ahmad vs District Magistrate Meerut and Ors., [1989] 4 SCC 556; Bhanwarlal Ganeshmalji vs State of Tamil Nadu & Anr., ; and T.A. Abdul Rahman vs State of Kerala and Ors., ; , relied on.
In the instant case the cars containing brown sugar were impounded on July 19, 1989 and statements of the driv ers were recorded next day.
Reports of the chemical examIna tion of contraband drugs were received on 29th September, 1989, 13th October, 1989 and 16th November, 1989.
The cus toms officials screened all these thIngs and the detaInIng authority after considering all these things passed the order of detention on December 20, 1989.
There fore, it cannot be held that the delay of five months in making the impugned order of detention 242 rendered the detention illegal and bad as it was made on stale ground.
The detention order has been made with promp titude considering the relevant and vital facts proximate to the passing of the impugned order of detention.
[248A C] 3.
It is evident from the record that after receipt of the representation of the petitioner, it was sent to the detaining authority for his comments and immediately after the comments of the detaining authority were received the same were processed and put up before the Minister concerned who rejected the representation after considering the com ments of the detaining authority and the State Government.
It is also evident that the Central Government passed the order after considering the comments of the detaining au thority.
Therefore, the contention that the detention order was passed by the Central Government without considering the comments of the detaining authority and there was long delay in disposing the detenu 's representation affecting the validity of detention is without any substance.
[252C D; E F] 4.
Article 22(5) of the Constitution mandates that all the relevant documents referred to in the grounds of deten tion and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.
[248F] 4.1 In the instant case the relevant document i.e. the bail application and the order made thereon was not consid ered by the detaining authority in coming to his subjective satisfaction and in making the impugned order of detention.
Therefore, the non furnishing to the detenu of the said document does not affect in any manner whatsoever the dete nu 's right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution of India.
[248U; 249A] Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., and Suraj Pal Sahu vs State of Maha rashtra & Ors.
; , , held inapplicable.
In the absence of personal allegation of mala fide or bias made by the detenu against the detaining authority in person, the omission to file affidavit in reply by itself is no ground to sustain the allegation of mala fides or non application of mind.
In the absence of detaining authority, the affidavit must be sworn by some responsible officer who personally dealt with or processed the case in the Secre tariat or submitted it to the Minister.
[253A; D] 243 5.1 In the instant case, the counter affidavit has been filed by the officer who was dealing with the papers relat ing to the particular order of detention and he placed those papers before the Minister concerned.
Therefore, the counter affidavit filed on behalf of the respondents cannot but be considered and there is no allegation of mala fide or malice or extraneous consideration personally against the detaining authority in making the impugned order of detention.
[253G H] Madan Lal Anand vs Union of India & Ors.
, ; ; Mohinuddin vs District Magistrate, Beed and Ors., ; ; Niranjan Singh vs State of Madhya Pradesh, ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar, ; and Mohd. Alam vs State off West Bengal; , , relied on 6.
The persons examined under section 108 of the were well known to the petitioner.
The statements of these persons clearly implicate the petitioner who know ing fully that the two cars will be used for the purpose of transportation of prohibited drugs i.e. heroin and for soiling of the same, handed over the keys of the two cars to the driven Therefore, the contention of the petitioner that the detention order was vitiated by non application of mind is devoid of merit.
[247A B; 246F] 7.
Accordingly, the impunged order of detention is quite in accordance with law and the same is valid.
[254A]


judgement:
Civil Appeal No 5014 of 1984.
From the Judgment and Order dated 3.9.84 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 Rs.31,101 from the United Kingdom under the Bill of Entry dated 6.8.1979.
The goods were assessed to duty under heading 40.05/16(3) at 40% plus countervailing duty at the rate of 25% under Item 16 A(4) 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 59.16/17 and without countervailing duty.
The Assistant Collector rejected the claim by his order of 12.10.1979.
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 59.16/17. 2.
On November 21, 1981, the Government issued a notice to the appellant under Section 13 1(3) of the Act asking him to show cause as to why the goods should not be classified under heading 39.07 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 39.07 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 131(3) 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 case,the 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 6.8.1979 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 1(5) 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 131(3).
The relevant observations are as follows: "Once the provisions contained in section 131(3) 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 131(5) of the Act speaks 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 the Central Government of its own motion to annul or modify any order of erroneous refund of duty.
The provisions contained in section 13 1(5) 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 131(3), 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 131(3) 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 131(3), 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 section(5) 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 annul/modify 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. CD(SB)(T) 1604/8 I C.
The appellant imported a consignment of top line tube winder endless belts valued at Rs.31,101.
The consignment came from the United Kingdom and was covered under a Bill of Entry dated 6.8.1979.
The goods were assessed to duty under heading 40.05/16(3) at 40% plus counter vailing duty at the rate of 25% under Item 16 A(4) 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 59.16/17 of the .
On 12.10.1979 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 59.16/17 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 21.11.1981 prima facie being of the view that the Appellate Collector was not correct in classifying the goods under heading 59.16/17 of the , as also that the original classification under heading 40.05/16(3) 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 39.07 of the and not under heading 59.16/17 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 4.7.1981, the show cause notice was issued on 21.11.1981 and served on the party on 24.11.1981.
The show cause notice has therefore been issued within the period of six months.
Section 13 1(5) 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 131(3) 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 1(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 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 1(5) 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 1(3) of the empower the Central Government to annul or modify any order passed under that Act and that the time limit provided in section 131(5) would not be applicable to the notice issued under 131(3).
Further 'relevant date ' as provided under the third proviso to section 36(2) 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 39.07 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.
i.e., 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 28(3) 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 6.8.1979 whereafter claim for refund was made by the appellant which was rejected by the Assistant Collector on 12.10.1979.
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 6.8.1979, 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 12.10.1979 had its appeal accepted on 2.5.1981 from the Appellate Collector who ordered refund.
The Central Govern ment then got a cause to take suo motu action under section 13 1(3) 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. CD(SB)(T) 1604/81 C so as to revive the order of the origi nal assessment dated 6.8.1979 and the order of the Assistant Collector of Customs, Madras dated 12.10.1979, keeping upset the orders dated 2.5.1981 of the Appellate Collector of Customs, Madras passed in Appeal No C, 3,,2 12/80.
The appellant shall have their costs.
ORDER According to the decision of the majority.
the appeal stands dismissed with costs.

summary/full:
The appellant imported Top Line Tube Winder Endless Belts which were assessed to duty under heading 40.05/16(3) at 40% plus countervailing duty at the rate of 25% under Item 16 A(4) of the .
Thereafter, the appellant made an application for refund of the excess of duty so charged contending that the goods were in fact liable to be classified under heading 59.16/17, and without countervailing duty.
The Assistant Collector rejected the claim by his order dated October 12, 1979 and against it the appellant pre ferred an appeal under Section 128 of the to the Appellate Collector who allowed the appeal holding that the goods were classifiable under heading 59.16/17.
The Government, however, issued a suo motu show cause notice dated November 21, 1981 to the appellant under Sec tion 131(3), asking the appellant to show cause as to why the goods should not be classified under heading 39.07 which attracted duty at 100% ad valorem, and also as to why the order dated May 2, 1981 passed by the Appellate Collector should not be annulled.
Against the aforesaid show cause, the appellant pre ferred an appeal to the Customs Excise and Gold Control (Appellate) Tribunal, contending that the show cause notice was barred by limitation under sub section (5) of Section 131 read with Section 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.
97 The Tribunal dismissed the appeal holding that the notice was in time, and that the assessment proposed to be made under heading 39.07 was proper and set aside the order of the Appellate Collector allowing the revision.
In the appeal to this Court, the question for considera tion was: whether the Central Government violated the bar of limitation while exercising suo motu revisional powers under Section 13: of the .
Dismissing the appeal by a 2:1 Majority, this Court, HELD: (Sabyasachi Mukharji, CJ.
and P.B. Sawant, J. Per Sawant, J.) 1.
The provisions of Section 131(5) and therefore the limitation laid down in section 28 of the Act do not apply to the action taken by the government under section 131(3).
[103D] Geep Flashlight Industries Ltd. vs Union of India, ; , followed.
Even if it was held that the limitation as laid down in Section 28 would apply to the initiation of action under Section 131(3), since the appellate order in the instant case, 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 131(3) is clearly not barred by limitation [102G H] 3.
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 instant 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 provisions of subsection (3) of Section 131 are governed by sub section (5) thereof and, therefore, the limitation laid down under section 28 of the Act applied to the action of the Government under section 131(3), the present show cause notice is not barred by limitation [103C D] 4.
It is clear from the provisions of sub section (3) of Section 131 that it does not give power to the Central Government to act suo motu 98 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 levying or short levying the goods.
That sub section by implication also covers cases of refunds, when goods are cleared initially under a provisional assessment, and 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.
[103G H; 104A B] 5.
Thus, the situations contemplated by sub section (3) and by sub section (5) of Section 131 are mutually exclusive in that whereas sub section(3) speaks of the annulment or modification of the appellate or revisional orders, sub section (5) speaks of the orders passed by the original assessing authority.
[104B] 6.
Hence, the limitation applies when the Government seeks to annul or modify orders of the original assessing authority under subsection (5) and not when the Government takes action to annul or modify the appellate or revisional orders under sub section (3) [104C] 7.
The above interpretation is also consistent with the provisions of sub sections (1) and (4) of Section 131.
[104D] 8.
The conclusion is inescapable that the limitation prescribed by Section 28 is applicable when under sub sec tion (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.
[104G H] 9.
In the instant case, since the impugned show cause notice is issued to annul/modify the order passed by the Appellate Collector of Customs under Section 128, it is not barred by limitation.
[105A] (Per M.M. Punchhi, J. dissenting) 1(a) Section 28 envisages three kinds of errors in regard to custom duties.
One is non levy.
This means that the goods were not 99 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 short levy of custom duty, or the like.
The third is the case of erroneous refund.
This category springs up in the process of assess ment only where two kinds of error, i.e. non levy or short levy may occur and lead to an erroneous refund.
[108H; 109A] (b) It is clear from section 28 that in case 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 duty on framing the final assessment as the case may be.
[109E] Geep Flashlight Industries Ltd. vs Union of India & Ors., ; , referred to.
Since levy is linked to assessment, a case for refund may arise which may be erroneous.
[109A] In the instant case, the Tribunal seems to take the view that sub section (3) of Section 131, if employed, eclipses sub section (5) of Section 131.
It was 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 opinion that any duty of customs has either not been levied or has been short levied.
This approach appears to wholly erroneous.
[108D E] 3.
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 con ferred by the legislature on the Central Government for revision.
[108E] 4.
The harmonious way is, therefore, to read these sub sections would be that the Central Government is empow ered 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 pro posed 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.
[100F G] 100 5.
Merely because the Central Government had the power to suo motu revise the orders of refund passed by the Appel late Collector it does not follow a fortiori that it had the power to revise the orders of short levy at that stage.
[110D] 6.
The orders of levy of duty in the instant case, 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.
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 6.8.79, the date when 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 12.10.79 had its appeal accepted on 2.5.81 from the Appel late Collector who ordered refund.
The Central Government then got a cause to take suo motu action under Section 131(3) of the to annul or modify the order of the Appellate Collector or the actual refund itself under that order.
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 categories of errors could not be equated with the error of erroneous refund inasmuch as these three categories of errors are treated separately in the scheme of things.
[109H; 100A B] 7.
The error committed by the Tribunal, in the instant case, is so patent that it cannot be allowed to go uncor rected as a tolerable error.
The appeal has, therefore, to be allowed The orders of the Tribunal passed in appeal have to be modified so as to revive the order of the original assessment dated 6.8.79 and the order of the Assistant Collector of Customs dated 12.10.79, keeping upset the orders dated 2.5.81 of the Appellate Collector of Customs.
[ 110G H]