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

Briefly stated, the appellant is engaged in manufacture of cotton and man-made fabrics. According to the appellant, the fabric manufactured by the appellant was not amenable to excise duty since it was for captive consumption and not to be removed for the purposes of sale or for consumption as envisaged under Rule 9 read with Rule 49 of the Central Excise Rules, 1944 (for short, ‘the Rules?). On this assertion and relying on the decision of the High Court of Delhi in J.K. Cotton Spinning & Weaving Mills Co. Ltd. & Ors. vs. Union of India & Ors. 1981 (8) ELT 887 (Del.)  , the appellant filed two writ petitions under Article 226 of the Constitution of India before the High Court of Delhi being Civil Writ Petition Nos. 1234/1981 and 1235/1981. The reliefs claimed in both petitions are identical except that they pertain to separate periods. We may reproduce the reliefs claimed in Writ Petition No. 1235/1981, for the sake of convenience. The same read thus:Issue a suitable writ, order or direction declaring that duty of excise is not payable in respect of yarn (Cotton and man made) processed further in the petitioner?s composite mills in the manufacture ofIssue writ of certiorari or any other suitable writ, order or direction in the nature thereof quashing and setting aside the decisions and directives of the Central Board of Excise, respondent No.2, contained in circular letters dated 6.10.1976 (Annexure A), 24.9.1980 (Annexure B) and to quash the notices dated 23.4.1981 (Annexure C) and all similar notices referred to in the statement (Annexure D), dated 7.1.1981 (Annexure G) and dated 9.3.1981 (AnnexureIssue a writ of mandamus or any other appropriate writ, order or direction in the nature thereof, restraining the respondents from levying or collecting duty of excise in respect of yarn obtained by the petitioner at an intermediary stage in its composite mill for further processing in the manufacture of fabrics and to direct the Board, respondent No.2, to cancel and/or withdraw the decisions and directives contained in circular letters dated 6.10.76 (Annexure A) and 24.9.80 (Annexure B) and to direct respondent 3 and 4 to cancel and/or withdraw the notice dated 23.4.1981 (Annexure C), 23.2.81 (Annexure G) and all similar notices referred to in the statement (Annexure D), dated 7.1.1981 (Annexure G) and 9.3.1981 (Annexure H) and to restrain defendants 3 and 4 from taking any steps or/proceedings pursuant to and in accordance with the aforesaid directives andIssue a writ of prohibition or any other appropriate writ, order or direction in the nature therefore, restraining the respondent from collecting duty of excise on yarn obtained by the petitioner in its composite mill which is further processed in the manufacture ofIssue appropriate writ, order or direction directing the respondent to refund the amount of duty illegally recovered from the petitioner in respect of yarn obtained in the petitioner?s composite mills and further processed in the manufacture of fabrics for the period commencing from 15.7.1977 in respect of cellulosic spun yarn and non- cellulosic spun yarn and from 17.3.1972 and in respect of cotton yarn and from 15.7.77 upto the date of disposal of the present writ petition and in particular the amounts referred to in statement (annexure E) together with interest at the rate of 12% p.a. and in the alternative to direct Respondents No.3 and 4 to grant the refund as per refund claims dated 13.5.1981In the alternative and without prejudice to the aforesaid prayers, to issue a writ of mandamus or any other writ, order or direction in the nature thereof direction the respondent not to collect duty of excise in respect of yarn upon sizing thereof processed in the manufacture ofIn the alternative and without prejudice to the aforesaid prayers, issue writ of prohibition or any other writ, order or direction in the nature thereof, restraining the respondents from levying or collecting duty of excise in respect of yarn processed within the petitioner?s composite mills on the basis of the weight of yarn after sizingTo pass such other and further orders as may be deemed just and proper in the facts and circumstances of this case;Award costs of the writ petition in favour of the petitioner.During the pendency of the aforementioned writ petitions, the appellant filed Civil Miscellaneous Petition Nos. 1698/1981 and 1699/1981 in the concerned writ petitions, praying for interim reliefs. For the sake of convenience, the reliefs claimed in Civil Miscellaneous Petition No. 1699/1981 filed in Writ Petition No. 1235/1981 are reproducedgrant order of stay permitting the petitioners forthwith to further process and use cellulose and non-cellulosic spun yarn, man-made filament yarn and cotton yarn in its composite mill in the manufacture of man-made fabric, cotton fabric and woollen fabric at nil rate of duty and to clear cotton fabrics forthwith upon payment of duty in respect of cotton fabric only (without payment of duty on cotton yarn) upon the petitioners undertaking to furnish the requisite bond in Form B-13 Rule 9B supported by a bank guarantee for an amount equivalent to 25% of the differential duty in respect of such yarn within three weeks hereof and to restrain the respondent 3 to 4 from taking any action or proceedings pursuit to the directives of the Board, respondent No.2 (Annexures A and B to the writ petition) and notices dated 23.4.1981 (Annexure C to the writ petition), and all similar notices referred to in the Statement (Annexure D), dated 7.1.1981 (Annexure G to the Writ Petition) and 9.3.1981 (Annexure H to the Writgrant exparte ad interim stay in terms of prayer (a) hereinabove :pass such other and further orders as may be deemed just and proper.The High Court of Delhi vide order dated 25.5.1981, while issuing notice on the said miscellaneous petitions, granted interim relief in terms of Prayer clause (a) reproduced above. In furtherance of the said interim relief, the appellant furnished an undertaking dated 2/10.3.1983 in order to secure the payment of differential tax to the Department of Revenue, Ministry of Finance (for short, ‘the Department?) in the event of dismissal of its writ petitions. The format of that undertaking was in conformity with the prescribed undertaking in Form B-13 referable to Rule 9B of the Rules, submitted by the assessee in the case of provisional assessment. Later on, the High Court modified the interim relief on 14.5.1985. The relevant portion of the modified interim relief reads thus:will be no stay with regard to future payments. During the pendency of the Writ Petition, where will be stay in respect of 50% of the disputed amount of duties claimed by the respondents as arrears on the condition that the applicant furnish Bank Guarantees or renew the Bank Guarantees already furnished and keep it in force till the disposal of the writ petition. With regard to the balance of 50% of the arrears of duty which is disputed, 25% of it shall be paid within 3 months from today. With regard to the remaining 25%, the parties will pay the same in two equal installments of 12½% each in every succeeding quarter. The 25% payment which is the first payment shall be made on or before 14 th August, 1985, the second installment shall be made on or before 14 th November, 1985 and the third and the last installment to complete the 50% will be paid on or before 20 th February,arrears of disputed duty which are required to be paid is only in respect of unsized yarn. Any duty claimed on sized yarn will not be paid by virtue of thiswill be no duty payable on the sized yarn even for future till disposal of the writany payments have been made through disputed, the same would be adjusted in accordance with what is provided in the order passed by usPursuant to the modified interim relief, the appellant deposited 50% of its liability towards central excise duty in installments and continued to make future payments. The writ petitions were eventually disposed of on 10/12.3.1993 in the following terms:for the parties are agreed that this case is covered by the orders and directions issued by the Supreme Court in Civil Miscellaneous Petitions No.8869 of 1988 and others in Civil Appeals Nos.323 of 1984 and others in Rohit Mills Ltd. v. Union of India, dated 28 th April, 1988 and it will be open to the petitioner to raise such other contention available to it before the adjudicating authority in response to the show-causewe dispose of the writ petition in terms of the aforesaid orders of the Supreme Court, which should be read as part of our order. No order as to costs.Consequent to the disposal of the writ petitions, the Assistant Collector of Central Excise vide letter dated 26.3.1993 addressed to the appellant, informed the appellant that Section 11A of the Central Excise Act, 1944 (for short, ‘the Act?) was not applicable to the facts of the present case. For, the amount was secured by the bank guarantee furnished by the assessee in terms of the interim order passed by the High Court of Delhi. Yet an opportunity was offered to the appellant to send its response. The said letter of the Assistant Collector reads as follows:OF THE ASSTT. COLLECTOR OF CENTRAL EXCISE: DIVISION F-I 2 ND FLOOR, MADHU INDUS ESTATE: P.B. MARG, WORLI,Bombay, the 26 th March,Bombay Dyeing & Manufacturing Co.ub Delhi High Court CW.P. No.1235/81 M/s. Bombay Dyeing & Mfg. Co.of India andrefer to various correspondences exchanged on the above said statehave been directed to inform you that the aforesaid case was listed on 12.3.93 before Hon?ble the Chief Justice and Hon?ble Mr. Justice Anil Dev Singh, Delhi High Court, Newaforesaid case is decided in view of the orders passed by the Supreme Court of India in the case of M/s. Rohit Mills Ltd. (copy attached herewith for your information and for further actioncomplying the aforesaid orders of the Supreme Court of India in case of M/s. Rohit Mills Ltd., on which case the Delhi High Court has disposed of the instant writ petition, this office would like to bring to your notice asregards applicability of Section 11A and encashment of Bank Guarantee, it is pertinent to refer to the Hon?ble Supreme Court?s order in Writ Petition No.848 of 1984 filed by M/s. Bhilwara Processor Ltd. and others, wherein the issue was in dispute i.e., whether department can enforce Bank Guarantees executed in terms of Court?s order without issuing Show Cause cum Demand Notice under section 11A. In the above case, also, an interim order was passed on 20.2.84 by the Hon?ble Supreme Court of India restraining the department from levying and recovering the disputed portion of the duty of excise on the condition that petitioners of the case shall furnish the bank guarantee. The Bank guarantee was furnished and the writ petition was dismissed by the Hon?ble Supreme Court of India on 4.11.88. Thereafter the department asked the petitioners to take steps to enforce the Bank guarantee. Aggrieved with this action, they filed a Miscellaneous Writ Petition before Supreme Court of India stating that since no Show Cause cum Demand Notice was issued under Section 11A, no recovery beyond the period of 6 months can be effected. The above petition of M/s. Bhilwara Processors Ltd. was dismissed by Hon?ble Supreme Court of India by its order dated 29.11.88 (reported in Judgment Today Vol. (4) November Part 1988 (83)similar order was passed by Rajasthan High Court vide order dt. 9.12.1988 in C.W.P. No.4441/88. In this case under similar circumstances, M/s. Modern Suitings also made the same grievances before Rajasthan High Court. The Hon?ble Rajasthan High Court placing reliance on the order dt. 29.11.1988 passed by the Hon?ble Supreme Court of India in the case of M/s. Bhilwara Processors Ltd. observed asthat as it may, we are of the opinion that once orders of a Court, stay order is sought in respect of recovery of Excise Duty or any other duty for that matter and the stay order is conditional, on furnishing Bank Guarantee, if ultimately the writ petition is dismissed and stay order is vacated, the Bank guarantee can become encashable immediately. Therefore, we need not go into this question as to whether Section 11A is or is not attracted, we are of the opinion that because the petitioner furnished the Bank guarantee, makes secured a stay order which was conditional as a result of which levy and recovery was stayed once writ petition has been dismissed and the stay order has been dismissed ……. The Bank guarantee has become encashable, neither it will be proper nor equitable for this Court to say or make an order that the Bank guarantee should not bethe above observation, we dismiss the writ petition with no order as toview of the facts of the case discussed above, the Section 11A is not applicable in the instant case since the amount was secured by the Bank guarantee furnished by the assessee in terms of the stay order of Hon?ble Delhi Highcomplying the orders given by the Supreme Court of India in case of M/s. Rohit Mills Ltd., this office would like to know whether petitioner desires Show Cause cum Demand Notice to be issued by the respondent i.e., Union of India, for the recovery of outstanding dues. If yes, the same may be confirmed by 31.3.93 so as to enable this office to take the action as directed by the Hon?ble Supreme Court of India in case of M/s. Rohit Mills Ltd. However, it will be nothing but the postponement of payment of Central Excise Duty, which is legitimate right of the Union of India, which was deprived by you by filing the instant writ petition, since 1981. If no, the consent letter should be submitted to this office for encashment of Bank guarantees, as early asearly reply is awaited in thisL EXCISE DN.The appellant in its response sent on 11.5.1993, asserted that the Show Cause Notice under Section 11A of the Act was mandatory and moreso in light of the decision of this Court dated 28.4.1988 in Rohit Mills Ltd. & Ors. vs. Union of India & Ors. 1988 (18) ECR 17 SC   The said communication reads thus:th May,Assistant Collector of Centralr Ref. F.No.IV/CL-VI/30-84/FI/93/2295 Dated 2 nd April,rit Petition No.1235/1981 Bombay Dyeing & Mfg. Co. Ltd. (Spring Mill Unit) Vs. UOI & Ors.This has reference to your above letter whereby you have intimated the date of hearing for finalizing the classification list in respect of cotton yarn and man made Yarn. Your attention is also drawn to your earlier letter F.No.FI/PI/V(18)-3/81/1705 dated 26.3.1993, whereby you desired us to intimate whether your would like a show cause notice to be issued u/s 11A of the Act.We would draw your kind attention to the order passed by the Hon?ble High Court of Delhi dated 10.3.1993 whereby the above writ petition was disposed of on the basis of the order passed by the Hon?ble Supreme Court in the case of Rohit Mills Ltd. For your ready reference, we enclose herewith a copy of the aforesaid order passed in the case of Rohit Mills.The directions issued by the Hon?ble High Court in the above matter on the basis of the directions issued as in the case of Rohit Mills contemplate that adjudication has now to be done pursuant to a Notice under Section 11A of the Act. It is specifically directed that in cases where such notice has been not issued, the Assistant Collector may issue such notice which should not go beyond 6 months. In the present case, no show cause notice under Section 11A has been issued and as such, as per the direction of the Hon?ble Supreme Court in the case of Rohit Mills Ltd., which direction also forms part of the order of the Hon?ble High Court disposing also forms part of the order of the Hon?ble High Court disposing of the above writ petition, your are now required to issue a Notice under Section 11A of the Act. On receiving such a notice, we shall raise our objections thereto and we reserve our right to do so.You have kindly intimated that the hearing in the above matter is now fixed for 11.5.1993. We may mention here that before any hearing is taken up a show cause notice under Section 11A will have to be first issued and an opportunity be given to us to reply to the Notice. In this connection we may also mention that as per the orders of the Hon?ble High Court dated 10.3.1993, we have been given specific liberty to raise such other contentions as are available, before the adjudicating authority in respect to the show cause notice. We reserve our right to raise such contention as may be advised, in reply to the said show cause notice.Although our contentions would be raised after the show cause notice under Section 11A is issued, we may clarify here that, in any event, no duty of excise is payable in respect of yarn after it is sized. In other words, duty of excise is not payable on the basis of the weight of the sized yarn. This has been clearly held in several decisions including the decision of the Hon?ble Supreme Court in the case of J.K. Cotton Spg. & Wvg. Mills Co. Ltd. and another vs. UOI (1987 (32) ELT 234  ). The attempt earlier made to levy duty of excise at the stage after yarn is sized, is patently illegal in view of the aforesaid decisions. The reference in your letter to provisional assessment is wholly irrelevant. In the first place, as per the directions of the Hon?ble High Court, adjudication has now to be done on the basis of show cause notice under Section 11A of the Act. Secondly for the reason that the provisionally if any, was in relation to dutiablity of yarn at the stage and the condition after sizing and did not relate to unsized yarn. In any event, the assessment has now to be done in terms of the directions of the Hon?ble High Court, after issuing a show cause notice under Section 11A of the Act. The adjudication can only be gone in accordance with the directions of the Hon?ble High Court.We may mention here that although our contentions would be raised as and when a show cause notice is received, we may indicate that in any event, no duty of excise is payable in respect of the yarn obtained at the intermediate stage which is further processed within the factory, since it is not obtained at that stage in a marketable condition. We have already paid certain amounts towards duty of excise in respect of such yarn under protest during the pendency of the writ petition and upon decision of this issue, we would be entitled to claim refund thereof.Further contentions would be taken in reply to the show cause notice, which may be issued as per the directions of the Hon?ble Supreme Court. Under these circumstances, we would request you to first issue a show cause notice under Section 11A of the Act and then give us an opportunity to file a reply thereto and a hearing in that respect. The hearing already fixed for 1193 may kindly be adjourned since the matter cannot be adjudicated without issuing a show cause notice under Section 11A of the Act as per the directions of the Hon?ble High. The Assistant Collector of Excise vide order-in-original dated 19.8.1993 noted that the appellant had filed classified lists for its products which had been approved provisionally and the appellant had been directed to pay excise duty. He also noted the objection of the appellant about non-issue of a Show Cause Notice under Section 11A of the Act. However, he proceeded to finalize the classification lists by noting that the classification lists filed earlier by the assessee were treated as provisional.In furtherance of the said order of the Assistant Collector, the Range Superintendent sent a letter dated 27.9.1993 to the appellant stating that all the RT-12 returns for the period of May, 1981 to May, 1985 for the items 18A, 18-III and 18E which had been assessed provisionally by the then Range Superintendent are assessed finally. By the same communication, he called upon the appellant to pay an amount of Rs.35,92,234.67 (Rupees thirty five lakhs ninety two thousand two hundred thirty four and sixty seven paise only) pursuant to the order dated 14.5.1985 passed by the High Court of Delhi. This was followed by a notice dated 7.10.1993 from theAssistant Collector of CentralExcise addressed to the appellant reiterating the position that pursuant to the interim order passed by the High Court of Delhi, provisional assessments had been made and necessary endorsements to that effect were made on the classification lists, monthly RT-12 returns, etc. Further, the appellant was obliged to make good the arrears of disputed duty amounting to Rs.35,96,235/- (Rupees thirty five lakhs ninety six thousand two hundred thirty five only) for the period starting from 25.5.1981 to 13.5.1985, which had become payable. The appellant was called upon to pay the said amount within ten days, failing which the Department would take necessary steps to enforce the bank guarantees and recover the dues from the appellant.Subsequent to the above notice, an opportunity of personal hearing was also given to the appellant on 19/20.10.1993 with respect to the recovery of dues. It appears that during the hearing, the appellant reiterated its stand that the Show Cause Notice under Section 11A of the Act was essential, including in terms of the order of the High Court of Delhi, dated 10/12.3.1993. The Assistant Collector of Excise, however, vide order-in-original dated 7/15.12.1993, confirmed the demand of excise duty. He held that in the present case, the duty liability itself was in dispute and the assessment could be made final only when the question of duty liability was decided by the High Court of Delhi, and once that issue was resolved, the question of issuing notice under Section 11A of the Act does not arise, especially when the appellant itself had voluntarily executed B- 13 bonds and the assessments were treated as provisional, as evinced from the endorsements on monthly RT-12 returns in that behalf.The appellant carried the matter in appeal before the Commissioner of Central Excise (Appeals), who in turn, rejected the appeal vide order-in-appeal dated 31.5.2000. The Commissioner of Central Excise (Appeals) also upheld the demand for excise duty and rejected the plea taken by the appellant regarding the necessity to issue a Show Cause Notice under Section 11A of the Act.The appellant then unsuccessfully carried the matter in appeal being Appeal No. E/2747/2000 before the Customs, Excise and Service Tax Appellate Tribunal (for short, ‘the CESTAT?). That appeal was dismissed on 22.2.2006. Against that decision, the appellant filed Central Excise Appeal No. 237/2006 before the High Court of Judicature at Bombay under Section 35-G of the Act, which was eventually dismissed on 13.9.2007 following the decision of the Division Bench of the same High Court dated 7.9.2007 in First Appeal No. 2597/2005 titled as The Jam Shri Ranjitsinghji Spg. & Wvg. Mills Co. Ltd. & Anr. vs. Union of India & Ors. 2007 (109) Bom LR 2167.To complete the narration of facts, it is relevant to mention that the relied upon decision was assailed before this Court in Civil Appeal No. 1551/2008 by the assessee therein, which was summarily dismissed on 7.3.2008, presumably at the admission stage.The sum and substance of the view taken in the relied upon judgment, which involved similar facts, is that in a case such as this where B-13 bonds have been executed by the assessee and clear endorsement is made on the monthly RT-12 returns that it is a case of provisional assessment, the question of issuing a Show Cause Notice under Section 11A of the Act does not arise. The assessee in that case had relied on the decisions of this Court, which have been distinguished as inapplicable to the fact situation of the case under consideration. We shall advert to the detailed reasons noted in this decision a little later.

Reasoning:
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.