Pradyot Kumar Banerjee, J.
1. This appeal arises out of judgment and order passed by the Hon'ble Single Judge discharging the Rule. The appellant, petitioner in the main rule was paying cess at the rate of 17 paise per quintal under Section 3 of the Oil Seeds Committee Act, 1946. On 1-4-66 the Act ceased to have effect. The Produce Cess Act came into force on 21st of May, 1966 when President's assent was received. In May 1967 the petitioner appellant was asked to pay the differential cess as under the Produce Cess Act and that cess has been raised from 17 paise per quintal to 60 paise per quintal. Therefore, the petitioner was asked to pay certain amount as differential cess as the cess was revised from 21-5-1966 when the Act came into force. But it appears that the demand of the differential cess was calculated with effect from 1-4-1966. On the face of it this calculation is patently wrong. The Produce Cess Act came into force on 21-5-66, when the assent of the President was obtained. Therefore, between 1-4-66 and 21-5-66 no cess under the Act can be asked to be paid.
2. Being aggrieved by the said order to pay the differential cess as per demand notice dated 25-12-67, the petitioner appellant moved this court and obtained a rule, which was, however, discharged by the Hon'ble Single Judge on 6th of June, 1975. Hence the present appeal.
3. Mr. Chakraborty on behalf of the appellant urged two points before us for our consideration. First of all he contended that there was no appointment of Collector or Assistant Collector or Superintendent of Central Excise under Section 2(a) of the Produce Cess Act who can exercise power under the said Ace. Mr. Sanyal on behalf of the respondents, however, contended that on the basis of Section 15(2) of the Act the officers of the Central Excise are empowered and the Salt Act and rules made thereunder are applicable to this case. In our opinion, this argument advanced by Mr. Sanyal cannot be accepted to be correct. It appears to us that Section 15 of the Act only provides for procedure for levy and collection of Tax. The rules of the Central Excises and Salt Act, 1944 or for that matter the Customs Act of 1962 were taken into consideration. Though the rule making power has been provided under the Act, the Central Government has not yet framed any rule while they are covered by the rules as framed under the Central Excises and Salt Act. Mr. Sanyal therefore contended that the Collector of Customs appointed under the Central Excises and Salt Act has all powers under Section 2(a) of the Produce Cess Act as Collector. In our opinion, that cannot be correct. Now, it appears that in 1969 the Government had exercised powers under Section 2(a) of the Produce Cess Act and appointed Collector by a notification published on 26th of March, 1969. The said notification runs as follows : -
'In Exercise of the powers conferred by Clause (a) of Section 2 of the Produce Cess Act, 1966 (15 of 1966), the Central Government hereby appoints the Officers specified in Col. (2) of Table below to perform within the areas specified in the corresponding entry in Col. (3) of the said Table, the duties of a Collector under the provisions of the said Act and the Rules made thereunder in so far as they relate to the levy and collection of the cess referred to in Sub-section (2) of Section 3 of the said Act, in respect of the produce specified in the corresponding entry in Col. (4) of the said Table.
SI. No. Offices Area Produce
1 2 3 4
1. Collector of C.E. Baroda., State of Gujarat. Oil Seeds, Copra and
2. Collector of C.E, Districts of Calcutta, Oil Seeds and Copra
Midnapore and Orissa.
3. Collector of C.E.,State of West Bengal Oil Seeds and Copra
West Bengal. and
other than Howrah,
Calcutta, 24-Pargns. and
S.J. Majumdar Add. Secretary
4. If Mr. Sanyal's contention is correct and Section 15(2) always applies even after the Collector is appointed, there will be two Collectors at the same time doing the same work. In our opinion, therefore, this does not mean that the Collector of Central Excise can levy and collect the excise duties. It applies only in respect of the matter which is the procedure for levy or collection of taxes or refund and exemption from duty. There is no officer to give that refund unless the Collector is appointed. After being appointed the Collector is to follow the rules and provisions of the Act made thereunder including those relating to the refund and exemption from duty. Therefore, in our opinion, unless the Collector is appointed, Collection of tax and levy cannot be proceeded with, In that view of the matter therefore the contention of Mr. Chakraborty in so far as the appointment of authority is concerned under Section 2(a) of the Produce Cess Act must be accepted.
5. The second point urged by Mr. Chakraborty is whether Rule 10 or 10A of the Central Excise Rules, in respect of the provision applies. Assuming for a moment that under the Central Excise and Salt Act the Collector is empowered to levy and collect taxes, still in our opinion this comes under Rule 10 of the Central Excise Rules. Rule 10 of the Central Excise Rules specifically provides when duties or charges have been short levied through inadvertence, error, collusion or misconstruction on the part of an officer or through misstatement as to the quantity etc. the period of limitation is three months from the date on which the duty or charge was paid or adjusted in the owner's account current, if any, or from the date of making the refund. In the present case, we have already said, the Act came into force on 21st of May, 1966. Assuming for a moment that the Collector is empowered to collect tax, still the produce cess as paid was shortlevied. Therefore, the Officer concerned ought to have made demand under Rule 10 of the Rules within three months from the date of this Act coming into force on 21st of May, 1966. In our opinion, demand is also barred by limitation.
6. Mr. Sanyal, however, contended that Rule 10A of the Rules is applicable and there is no limitation here. In our opinion it is clear that the levy of tax already made was wrong and it was shortlevied through inadvertence or errors on the part of the officers, assuming for a moment that he is entitled to impose. In that view of the matter in our opinion we fully agree with Mr. Chakraborty and accept the arguments on the points raised in this .appeal by Mr. Chakraborty.
7. The appeal is therefore allowed. The judgment and order passed by the Trial Judge is set aside and the rule is made absolute.
8. There will be no order as to costs.
9. The prayer for leave to appeal to the Supreme Court is refused.