SHIVA GLASS WORKS CO. LTD. v.

ASSISTANT COLLECTOR OF CENTRAL EXCISE AND OTHERS.

JANUARY 11, 1991

[N.D. OJHA AND K.N. SAIKIA, JJ.]

Central Excises and Salt Act, 1944/Central Excise Rules, 1944: Section 3/Rules JO and JOA-Assessee-Price list of goods furnished- Accepted provisionally-Excise duty paid-Goods cleared-Discre-

~--'.," pancy-Detected late:-Recovery of excise duty-Whether permissible.

The appellant company a licensee under the Central Excises and Salt Act, 1944 and during the relevant period namely 1st September, 1961 to 26th September, 1963 carried on the business of manufacturing different types of glasswares which were excisable goods under the Act.

The appellant used to present A.R.I. forms accompanied with price lists of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods. The office of the appellant was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized, and as a consequence thereof it transpired that the appellants were maintaining two sets of bills. The bills of one set were those on the basis of which the appellant used to pay excise duty befQre clearance of the goods and those of the other were such which were never issued to the dealers. In these two sets of bills, the rate of discount was differently shown.

A notice dated 26th March, 1968 was served on the appellant by

the Assistant Collector stating that it appeared that during the relevant F period the appellant had nt paid excise duty. on the goods at the prices at which they were sold, but duty was paid at lower rates and requiring it to show cause as to why duty on the prices at which the goods were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule lOA of the Central Excise Rules,

1944. In reply the appellant asserted that it was the provision of Rule 10 G and not Rule 1 OA which was attracted to the facts and consequently the initiation of proceedings was barred by time. This plea did not find favour with the Excise Authorities, and the appellant was required to pay the additional duty ofRs.1.41 lakhs.

The aforesaid order was challenged by the appellant before the H

A High Court under Article 226 of the Constitution and a Single Judge f acceptt:d the contention of the appellant that Rule 10 and not Rule lOA )._. of the Rules was applicable and on this view quashed the order dated 26th August, 1968.

The respondents preferred an appeal to the Division Bench which B has reversed the order of the Single Judge, on the finding that it was a case falling under Rule 1 OA and dismissed the writ petition.

In the appeal to this Court it was contended that the Single Judge >-- was right in taking the view that the case fell within the purview of Rule 10 of the Rules and that the Division Bench committed an error in c reversing the judgment, while the Revenue contested the appeal urging that on the facts found by the Division Bench, and indeed on the case set -- up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule lOA and not Rule 10 which was attracted to the facts of the case. -,...-

D Dismissing the Appeal, this Court,

HELD: 1. The question as to whether Rule 10 or Rule lOA was applicable has to be determined in the background of the procedure which was followed. The legal position is that Rule lOA does not apply where the case is covered by Rule lOofthe Rules. [48E]

,, A E N.B. Sanjana v. Elphinstone Mills, [1971] 3 S.C.R. 506, relied on. ...

2. Simply because Rule 9B of the Rules, was conceded not to have been taken recourse to by the respondent~ so that provisional assess- F ment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clea- ) ranee of the goods, the conclusion was not inescapable, that a f'.mal assessment had came into being at that time. [49A-B]

3. In view of the procedure adopted by the appellant it was appa- G rently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subse- " queµt verification, and appellant was under an obligation to pay, on the r basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and !!Je amount found H payable after subsequent verification. [49B-C]

_ _A

4. The Division Bench of the High Court has found that there was no ?Ssessment as is understood _in the eye ot law! but m_lly a mechanical settlement or adjustment of duties on the basis of the sale prices flied by the appellant had been made and at best, it was a case of incomplete assessment which tile Excise Authorities were entitled to complete under Rule lOA. [490]

Assistant Collector of Central Excise, Calcutta Division v.


5. The instant case therefore falls within the J>Urview of Rule lOA and not Rule lOofthe Rules. [SOB]

CIVtL APPELLATE JURISDICTION: Civil Appeal No. 763. C of 1977.

From the Judgment and Order dated 30.7.1976 of the Calcutta High Court in Appeal No. 167 of 1972.

Raja Ram Agrawal, K.B. Rana and Praveen Kumar for Khaitan & Co. for the Appellant.

A. Subba Rao, P. Parineshwaran and A.D.N. Rao for the Respondents.

The Judgment of the Court was delivered by

OJHA, J. Thi§ appeal by special leave has been preferred against the judgment dated 30th July, 1976 of the Calcutta High Court

in Appeal from Original Order No. 167/1972. The facts in nutshell necessary for the decision of this appeal are that the Appellant- F Company,- a licensee under the Central Excise and Salt Act, 1944 (hereinafter , referred to as the Act) carried on during the relevant time, namely.t 1st September, 1961 to 26th September, 1963, business of manufacturing different types of glasswares which were excisable goods under the Act. The appellant used to present A.R.I. forms accompanied with price lists of the goods and after paying excise duties G calculated on the basis of the price lists used to rerµove the goods. The appellant's office was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized. As a consequence of this search and seizure it transpired that the appellant was maintaining two sets of bills. The bills of one set were those on the basis of which the appellant used to pay excis_e du_ty

H ·

A before clearance of the goods and those of the other were such which I were never issued to the dealers. In these two sets of bills inter alia the >--- rate of discount was differently shown. A notice dated 26th March, 1968 was served on the appellant by the Assistant Collector of Central Excise, Calcutta-II Division, Calcutta stating that it appeared that the appellant had, during the relevant period, not paid excise duty on the B goods at the prices at which they were sold but duty was paid at lower rates declared by it. The appellant was required to show cause as to why duty amounting to Rs.1,43,633.84 p. on the prices at which the >--- goods were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule lOA of the Central Excise Rules, 1944 (hereinafter referred to as the Rules). The appelc lant, in reply to the show cause notice, inter alia asserted that it was the provisions of Rule 10 and not Rule lOA of the Rules which were - attracted to the facts of the instant case and that consequently the initiation of proceedings against the appellant was barred by time. This plea did not find favour with the Excise Authorities and the appellant was required, by order dated 26th August, 1968, to pay to the Central

'Y"

D Government, an additional duty of Rs.1,41,829.11 p. This order was challenged by the appellant before the High Court under Article 226 of the Constitution of India. A learned Single Judge of the High Court accepted the contention of the appellant that Rule 10 and not Rule lOA of the Rules was applicable and on this view the order dated 26th August, 1968 was quashed. Aggrieved by that order, the respondents preferred E an appeal before a Division Bench of the High Court. The judgment of the learned Single Judge was reversed, and on the findin_g that it was a case flling under Rule lOA, the writ petition was dismissed by the judgment under appeal. -

F The only point which has been urged by learned counsel for the appellant in support of this appeal is that the learned Single Judge was '~- right in taking the view that the case fell within the purview of Rule 10 J of the Rules and the Division Bench committed an error ir, reversing ,_...._ his judgment. For the respondents on the other hand, it has been urged that on the facts found by the Division-Bench and indeed on the case set up by the appellant itself no exception could be taken to the G finding of the Division Bench that it was Rule lOA of the Rules and not Rule 10 which was attracted to the facts of the instant case, In order to appreciate the respective submissions made by learned "r counsel for the parties it would be useful to extract Rules 10 and lOA.

They read as hereunder:

H "10. Recovery of duties or charges short-levied or errones-

__ ___._

' \ (,,...,,__

ously refunded-hen duties or charges have been shortlevied through inadvertence, error, collusion or misconstruction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owning to such cause, erroneously refunded, the person chargeable with the duty or charge so short-levied, or to whom such refund has been erroneously made, shall pay the deficiency or the amount paid to him in excess as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid

or adjusted in the owners' account, current, if any, or from the date of making the refund." C

"lOA. Residuary powers for recovery of sums due to Government-Where these Rules do not make any specific provision for the collection of any duty, or of any deficiency in duty has for any reason been short-levied, or of D any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify."

In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned.counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellant's office on 26th September, 1963 it was found that the duty paid by the appellant on

the basis of price lists furnished by the appellant at the time of clea- F ranee of the goods was deficient, it was a case where duty had been short-levied "through mis-statement as to the quantity, description or value of such goods on the part of the owner" as contemplated by Kule

10. We find it difficult to agree with the submission. The procedure adopted by the appellant/was indicated by the appellant under its letter dated 23rd March, 1961, a portion whereof as extracted by the G learned Single Judge reads as hereunder:

"We enclose herewith our three price lists for 1) Bottles and phials 2) Glass-Wares and 3) Fancy Wares for the purposes of provisional assessment. These prices are inclusive of Central Excise duty. As regards Trade discounts to H

A be deducted from the said prices as per Section 4 of the Act


' 506, on which reliance has been placed by learned counsel for the appellant. Consequently, Rule lOA could be attracted only if the case does not fall within the purviw of Rule 10, It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provisions of Rule 9B. On this basis G and on his own finding also that Rule 9B was not attracted, the le.arned Single Judg_e held that it was not a case of proviSional assessment but a case of regular assessment in pursuance whereof duty was paid by the r-· appellant and that since the case of the respondents was that the appel- !ant had manufactured documents as was revealed as a consequence of the search and seizure referred to above it was a case of short-levy due fl to mis-statement by the appellant. Consequenly, the case dearly fell

) _,}.,


was held that the making of such entries was only a mode of collection G of tax and even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final. It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it. It was also held that.it was the process of adjustment that really determined whether levy was short or complete. It was not a factual or presumed levy which could in H

50 SUPRE:WtE COURT REPORTS

(1991] 1 S.C.R.

a disputed case prove an ".assessment". This had to be done by proof of the actual steps taken which constitute assessment.

We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacoo Co. of India Ltd.

(supra) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule lOA and not Rule 10 of the Rules. In the result, we find no merit in this appeal. It is accordingly dismissed with costs.

N.V.K.

Appeal dismissed.