JUDGMENT K.S. Jhaveri, C.J. - Heard Mr. Jayanta Das, learned Senior Advocate for the petitioner and Shri T.K. Satapathy, learned Standing Counsel for the opposite party-Customs. 2. By way of this writ petition, the petitioner has challenged the order dated 17.11.1998 under Annexure-4 passed by the Customs Excise and (Gold) Appellate Tribunal, Eastern Bench, Calcutta in Appeal No.C (SB) 519/92, whereby the authority has rejected the appeal of the petitioner purportedly exercising its power under section 129 of the Customs Act, 1962. 3. Learned counsel for the petitioner contended that the provisional assessment was done on 30.05. 1986 and thereafter final assessment was done on 21.07.1986 exercising power under section 129D of the Customs Act, 1962, which reads as under: "129D. Powers of Board or Collector of Customs to pass certain orders - (1) xx xx xx (2) The Collector of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Customs in his order. xx xx xx (5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of the duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. xx xx xx (5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of the duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation.-For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question- (a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975) or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods fall under a particular heading or sub-heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975) or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the values of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.]" 4. Learned counsel for the petitioner further contended that exercise of power by the authority under section 129D of the Customs Act should not have been done in the present case and the impugned order has been passed having no jurisdiction. In support of his argument, learned counsel for the petitioner also relied upon section 28(1)(b) of the Customs Act, 1962 which reads as under: "28. Notice for payment of duties not levied, short levied or erroneously refunded.-(1) xx xx xx (b) In any other case, within six months." 5. Learned Standing Counsel for the opposite parties-Customs has stoutly supported his case relying upon the counter affidavit. Paragraphs-4, 8 and 9 of the said counter affidavit read as under: "4. Notice for payment of duties not levied, short levied or erroneously refunded.-(1) xx xx xx (b) In any other case, within six months." 5. Learned Standing Counsel for the opposite parties-Customs has stoutly supported his case relying upon the counter affidavit. Paragraphs-4, 8 and 9 of the said counter affidavit read as under: "4. The petitioner's contention at para no.2.1 of the writ petition is disputed and denied. The contention put forth by the petitioner that opposite party No.1 did not have any jurisdiction to cause action for filing application under Section 129D of the Act is strongly refuted. Provisions of Section 129D(2) of the Act empower the Commissioner of the Customs to examine any decision/order passed by any subordinate authority to satisfy himself as to the legality or propriety of such decision/order. By virtue of said provisions, the Commissioner of Customs has inherent jurisdiction to review the decision./order passed by the subordinate authorities by issue of an order to that effect. Upon issue of such order by the Commissioner, the subordinate authorities make an application to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order. In the present case, Commissioner's order No.6-Cus-CA-87 dated 14.7.87 was absolutely in conformity with statutory provisions prescribed under Section 129D(2) of the Act. It appears, the petitioner has misconceived the import of statutory appeal provisions and the implications thereof. The petitioner's contention that the action would have been taken under Section 28 of the Act is bereft of legality. Tribunal in the impugned order No.A-899/Cal/98 dated 2.11.98 had elucidated the correct legal position. It appears, the petitioner has misconceived the import of statutory appeal provisions and the implications thereof. The petitioner's contention that the action would have been taken under Section 28 of the Act is bereft of legality. Tribunal in the impugned order No.A-899/Cal/98 dated 2.11.98 had elucidated the correct legal position. The relevant extracts of said order are reproduced as under: "As regards the reliance placed by the learned Advocate on the provision of Section 28(3) which required the Commissioner (Appeals) to issue the notice within a timelimit specified in Section 28, in the case of his opinion for enhancement of any duty not levied or short-levied or erroneously refunded, it is observed that the said provision is not adopted to the facts of the instant case because the Commissioner (Appeals) is not directing the appellants to pay any duty short-levied or non-levied, but is merely deciding on the propriety or legality of the Final Assessment Order passed by the Assistant Commissioner, Paradeep, for which an application has been made before him by the Assistant Commissioner in pursuance of the order passed by the Commissioner under Section 129D(2). While deciding upon the legality or propriety of the said order by the Commissioner (Appeals), the same may result into demand or more duties. But then, that would be the result and outcome of the appeal and cannot be said to be a case covered by the provision of Section 128A (3) Second Proviso. Accordingly, in view of our discussions above, following the Larger Bench decision and the judgment in the case of M/s. Assam Forest Products (P) Ltd. referred supra, we do not find any merits in the appeal filed by the appellants and reject the same". Petitioner's contention is not legally tenable in view of reasons mentioned above. xx xx xx 8. Petitioner's contention at para No.2.5 of writ petition is denied. The instant case related to question of legality or propriety of assessment order passed by Assistant Commissioner, Customs, Paradeep. Such assessment order being an order under the Customs Act, could be lawfully reviewed by the Commissioner in exercise of statutory powers vested in him under Section 129D(2) of the Act. The legal position had been made clear by Tribunal's order referred to earlier. The issue regarding short-levy or non-levy as raised by the petitioner is irrelevant to the facts of the instant case. The legal position had been made clear by Tribunal's order referred to earlier. The issue regarding short-levy or non-levy as raised by the petitioner is irrelevant to the facts of the instant case. it is reiterated that the present case is covered within the ambit of Section 129D of the Act. 9. Petitioner's statement that the present case attracts proviso to Section 128A of the Act, i.e. issue of notice within the time-limit specified in Section 28 of the Act, as a condition precedent for exercise of power by Commissioner (Appeals) under Section 128A of the Act, is not legally tenable in view of reasons mentioned in Tribunal's order cited above at para no.4. This is in reply to the averments made by the petitioner in para no.2.6 of the writ petition." 6. On conjoint reading of Sections 129D and section 28(1)(b) of the Customs Act, 1962, it is clear that the time period for exercising power under section 129D of the Customs Act is six months after the final assessment order. In the present case, admittedly, after 20th January, 1986 the authority/officer had no power to invoke section 129D of the Customs Act but the same has been done almost after one year of the final assessment. Therefore, it is hopelessly time barred and without jurisdiction. 7. We have heard learned counsel for both sides. Taking into consideration section 28(1) (b) of the Customs Act, 1962 to the effect that exercise of power under section 129D of the Customs Act, admittedly, was required to be done within six months of the final assessment and the impugned order has been passed after six months, the impugned order is liable to be quashed and set aside. Accordingly, the impugned order dated 17.11.1998 under Annexure-4 is set aside and the writ petition stands allowed. 8. We make it clear that we have not expressed any opinion on section 129D (2) and (5) of the Customs Act either way. If recovery has been made from the petitioner, the same will be refunded to it within four months failing which the petitioner will be entitled to interest of the refunded amount. 9. The writ petition stands disposed of with the above observation/direction. 10. Urgent certified copy of this order be granted on proper application.