Case: M/S BOMBAY DYEING &amp; MFG CO. LTD Vs. COMMISSIONER OF CENTRAL EXCISE

said observations were meant to apply to cases where the final assessments were already made and not in respect of cases where the assessments were provisional, because duty liability is determined only at the time of final assessment. In other words, what is held in all the above cases is that, in spite of the retrospective amendment to Rule 9 and 49 is upheld, where the assessments are already finalised the duty under the amended Rule 9 and 49 can be recovered only by issuing notice under Section 11A of the 1944 Act. 40. This is evident from the fact that in the case of J.K. Cotton Mills (supra) in respect of the clearances effected during the pendency of the dispute, there was no direction to clear the goods on provisional assessment basis. In that case, neither the goods were cleared by executing B-13 Bond nor there were any endorsements made on the RT-12 returns to the effect that the assessments were provisional. Moreover, in the show cause notice issued by the revenue it was not even averred that the goods were cleared on provisional assessment basis. In fact, Assistant Collector in that case treated the assessments as provisional solely on the premise that the matter was subjudice and the basic argument of the revenue was that the stay granted by the Delhi High Court virtually amounted to stay of service of notice under Section 11-A of the Excise Act. In the facts of that case, where the assessments had attained finality and where there was no evidence whatsoever to establish that the clearances were effected on provisional assessment basis, the Apex Court held that in the absence of an express order of provisional assessment made under Rule 9B, the assessments cannot be treated as provisional.?28. As noticed earlier, this decision of the High Court of Judicature at Bombay was assailed by the assessee before this Court by way of Civil Appeal No. 1551/2008, which came to be summarily dismissed on 7.3.2008. We are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends to us. 29. The appellant had placed emphasis on the decision in The Bhopal Sugar Industries Ltd. (supra) and R.B.F. Rig Corporation, Mumbai (supra) to contend that the Department cannot be permitted to take contrary position than the direction given by the High Court of Delhi. For the reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period. 30. It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect. 31. Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitution of India and sought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment. 32. Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The said order will have to be understood in the context of the stand taken by the appellant before the High Court. In the said writ petitions, the appellant had asserted that the fabric manufactured by the appellant was not amenable to excise duty as it was not removed from the premises within the meaning of Rules 9 and 49 of the Rules. Indisputably, the purport of the stated Rules has been finally answered by this Court in M/s. J.K. Cotton Spinning and Weaving Mills Ltd. & Anr. vs. Union of India & Ors. 1987 (Supp) SCC 350   after resolving the conflicting opinions of different High Courts including of the High Court of Delhi. The stand taken by the appellant in the writ petition has been negatived by this Court, in the said decision. Thus, the question relating to liability to pay excise duty was not and could not have been disputed by the appellant at least after this decision. Concededly, the appellant had filed writ petitions taking clue from the exposition of the High Court of Delhi in J.K. Cotton Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1). That view has been finally dealt with by this Court in M/s. J.K. Cotton Spinning and Weaving Mills Ltd. (supra @ F.N.12), fastening liability on the assessee to pay exciseis not an undertaking filed pursuant to the order of the Court. Concededly, the order disposing of the writ petitions does not absolve the appellant from the said bonds; nor the endorsements made thereon and on the monthly RT-12 returns, indicating that it was a provisional assessment have been ordered to be effaced. Suffice it to observe that the order dated 10/12.3.1993 passed by the High Court of Delhi, disposing of the writ petitions filed by the appellant in no way extricate the appellant from the process to which the appellant had voluntarily submitted itself at its own volition, namely, under Rule 9B of the Rules. Thus, it was not a case of duty not levied or not paid or short-levied or short-paid. The understanding of the parties was absolutely clear that the appellant was liable to pay excise duty, but for the exposition of the High Court of Delhi in J.K. Cotton Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1). Understood thus, the appellant is obliged to fulfill its statutory obligations including those arising from the undertaking/bonds in Form B-13 and cannot resile from the process to which it had submitted itself without any demur, namely under Rule 9B of the Rules.Indeed, the High Court of Delhi while disposing of the writ petitions vide order dated 10/12.3.1993, had adverted to the decision of this Court in Rohit Mills Ltd. (supra). On a fair reading of that decision, it is obvious that the Court dealt with two situations referred to therein. First, where Show Cause Notices under Section 11A of the Act have been served and the claim does not cover any period beyond six months from the date of receipt of the notices. Second, where there is dispute as to whether the notice under Section 11A had been issued or not. In the present case, none of the above is attracted; and for the same reason the exposition in paragraphs 30 to 33 of M/s. J.K. Cotton Spinning and Weaving Mills Ltd. (supra @ F.N.12), on which reliance has been placed by the appellant, would be of no avail to the appellant.Indisputably, the appellant voluntarily executed bonds in Form B-13 referable to Rule 9B of the Rules and also furnished bank guarantee for an amount equivalent to the differential amount of duty in respect of the fabric in question. The authorities have made endorsements on the bonds and on the monthly RT-12 returns filed by the assessee, indicating that it was a case of provisional assessment. Having submitted to that process, it is not open to the appellant to urge that an express order of provisional assessment has not been passed by the authorities.Be that as it may, the stand taken by the parties as recorded in the order dated 10/12.3.1993, is limited to accepting the fact that if notice is required to be given, the same will be given and in that case it will be open to the appellant to file response thereto and further, the authorities would take decision after giving opportunity to the assessee. Nothing more can be read into the order dated 10/12.3.1993 passed by the High Court of Delhi. It is certainly not an order to undo the obligation accepted by the assessee by voluntarily executing the bonds in the prescribed format, namely, Form B-13 referable to Rule 9B of the Rules - to treat the process as provisional assessment until the disposal of the writ petitions. It is also noticed that the authorities have later on passed the final order after the disposal of the writWe are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends tothe reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period.It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect.Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitutionof India andsought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment.Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer.