Case ID: 6629

Judgment:
Civil Appeal No. 763 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. Parmeshwaran and A.D.N. Rao for the Respondents. The Judgment of the Court was delivered by OJHA	 J. This 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 Company	 a licensee under the Central Excise and Salt Act	 1944 (hereinafter referred to as the Act) carried on during the relevant time	 namely	 1st September	 1961 to 26th September	 1963	 business of manufacturing different types of glasswared which were excisable goods under the Act. The appellant used to present A.R.I. forms accompanied with price list of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods. The appellant 's office was searched by the Excise Authorities on 26 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 excise duty 46 before clearance of the goods and those of the other were such which 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 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 10A of the Central Excise Rule	 1944 (hereinafter referred to as the Rules.) The appellant	 in reply to the show cause notice	 inter alia asserted that it was the provisions of Rule 10 and not Rule 10A 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 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 Rule 10 and not Rule 10A of the Rules was applicable and on this view the order dated 26th August	 1968 was quashed. Aggrieved by that order	 the respondents preferred an appeal before a Division Bench of the High Court. The judgment of the learned Single Judge was reversed and on the finding that it was a case falling under Rule 10A	 the writ petition was dismissed by the judgment under appeal. 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 of the Rules and the Division Bench committed an error in reversing his judgment. For the respondents on the other hand	 it has been urged that on the fact 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 10A 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 counsel for the parties it would be useful to extract Rules 10 and 10A. They read as hereunder: "10. Recovery of duties or charges short levied or errones 47 ously refunded When duties or charges have been short levied 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 levies	 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." "10A. Residuary powers for recovery of sums due to Government Where these Rules do not make any specific provision for the collection any duty	 or of any deficiency in duty has for any reason been short levied	 or of 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 clearance 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 Rule 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 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 price are inclusive of Central Excise duty. As regards Trade discounts to 48 be deducted from the said prices as per Section 4 of the Act we declare that 1) 25% should be deducted from the price list for bottles and phials. 2) 35% from the price list for glass wares and 3) 20% from the price list for fancy wares over and above necessary deduction for Central Excise duty included in the prices. " The learned Single Judge has also pointed out that the appellant used to clear the goods by executing bond and that in the specimen copy of the bond produced in court it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value	 description	 quality or proof thereof or for non completion of chemical or other tests and whereas the appellant had requested the Excise Authorities as per Rule 9B of the Rules to make provisional assessment of excise duty of the goods pending final assessment	 the appellent was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties. The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by Excise Authorities	 the appellant used to file the price list in advance and after acceptance provisionally of the price list	 the goods used to be cleared and if subsequently and discrepancy was detected or found	 the same used to be paid by the appellant. The question as to whether Rule 10 or Rule 10A of the Rules was applicable has to be determined in the background of the appellant as indicated above. The legal position that Rule 10A does not apply where the case is covered by Rule 10 of the Rules is well settle in view of the decision of this Court in N.B. Sanjana vs Elphinstone Mills	 ; 	 on which reliance has been placed by learned counsel for the appellant. Consequently	 Rule 10A could be attracted only if the case does not fall within the purview of Rule 10. It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provision of Rule 9B. On this basis and on his own finding also that Rule 9B was not attracted	 the learned Single Judge held that it was not a case of provisional assessment but a case of regular assessment in pursuance whereof duty was paid by the appelant and that since the case of the respondents was that the appellant 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 to mis statement by the appellant. Consequently	 the case clearly fell 49 within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not	 and in our opinion rightly	 subscribe to the aforesaid finding. Simply because Rule 9B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment 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 clearance of the goods	 the conclusion was not inescapable	 that a final assessment had come into being at that time. In our opinion	 in view of the procedure adopted by the appellant referred to above it was apparently 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 subsequent varification and appellant was under an obligation to pay	 on the 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 the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in the eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best	 it was a case of an incomplete assessment which the Excise Authorities were entitled to complete under Rule 10A. In taking this view the Division Bench of the High Court has relied on a decision of this Court in Assistant Collector of Central Excise	 Calcutta Division vs national Tobacco Co. of India Ltd.; 	 In that case also the Company used to furnish quarterly price lists which used to be accepted for purpose of enabling the Company to clear its goods and according to the Excise Authorities these used to be verified afterwards by obtaining evidence of actual sale in the market before issuing final certificates that the duty had been fully paid up. The prices of the goods to be cleared were furnished by the Company on forms known as A.R.I. forms in that case also. It was held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi judicial process and involved due application of mind to the fact as well the requirements of law. With regards to the debit entries it was held that the making of such entries was only a mode of collection 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 50 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 Tobacco 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 10A 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.

Summary:
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 glass wares 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 before 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 period the appellant had not 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 good were actually sold	 as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule 10A of the Central Excise Rules	 1944. In reply the appellant asserted that it was the provision of Rule 10 and not Rule 10A 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 of Rs. 1.41 lakhs. The aforesaid order was challenged by the appellant before the 44 High Court under Article 226 of the Constitution and a Single Judge accepted the contention of the appellant the Rule 10 and not Rule 10A of the Rules was applicable and on this view quashed the order dated 26th August	 1968 The respondents preferred and appeal to the Division Bench which has reversed the order of the Single Judge	 on the finding that it was a case falling Rule 10A 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 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 10A and not Rule 10 which was attracted to the facts of the case. Dismissing the Appeal	 this Court	 HELD: 1. The question as to whether Rule 10 or Rule 10A was applicable has to be determined in the background of the procedure which was followed. The legal position is that Rule 10A does not apply where the case is covered by Rule 10 of the Rules. [48E] N.B. Sanjana vs Elphinstone Mills	 ; relied on. Simply because Rule 9B of the Rules	 was conceded not to have been taken recourse to by the respondents so that provisional assessment 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 clearance of the goods	 the conclusion was not inescapable	 that a final assessment had came into being at that time. [49A B] 3. In view of the procedure adopted by the appellant it was apparently 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 subsequent verification	 and appellant was under an obligation to pay	 on the 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 the amount found payable after subsequent varification. [49B C] 4. The Division Bench of the High Court has found that there was no assessment as is understood in the eye of law	 but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best	 it was a case of incomplete assessment which the Excise Authorities were entitle to complete under Rule 10A.[49D] Assistant Collector of Central Excise	 Calcutta Division vs National Tobacco Co. of India Ltd.	 ; 	 referred to. The instant case therefore falls within the purview of Rule 10A and not Rule 10 of the Rules.