{"id":5602,"date":"1972-08-09T00:00:00","date_gmt":"1972-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/assistant-collector-of-central-vs-national-tobacco-co-of-india-ltd-on-9-august-1972"},"modified":"2017-06-18T02:38:06","modified_gmt":"2017-06-17T21:08:06","slug":"assistant-collector-of-central-vs-national-tobacco-co-of-india-ltd-on-9-august-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/assistant-collector-of-central-vs-national-tobacco-co-of-india-ltd-on-9-august-1972","title":{"rendered":"Assistant Collector Of Central … vs National Tobacco Co. Of India Ltd on 9 August, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Assistant Collector Of Central … vs National Tobacco Co. Of India Ltd on 9 August, 1972<\/div>\n
Equivalent citations: 1972 AIR 2563, \t\t 1973 SCR (1) 822<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nASSISTANT COLLECTOR OF CENTRAL EXCISE,CALCUTTA DIVISION\n\n\tVs.\n\nRESPONDENT:\nNATIONAL TOBACCO CO.  OF INDIA LTD.\n\nDATE OF JUDGMENT09\/08\/1972\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n 1972 AIR 2563\t\t  1973 SCR  (1) 822\n CITATOR INFO :\n R\t    1985 SC 537\t (15)\n F\t    1986 SC1964\t (8)\n RF\t    1989 SC 516\t (28)\n E\t    1989 SC1829\t (5,16)\n RF\t    1991 SC 456\t (5)\n R\t    1992 SC1756\t (14)\n\n\nACT:\nCentral\t Excise Rules-Rule 10 and 10A, Whether the  impugned\nnotice\tfell under Rule 10 to be ineffective and  barred  by\nlimitation.\n\n\n\nHEADNOTE:\nThe  respondent manufactures cigarettes at its factory\tupon\nwhich  Excise Duty is levied by the Assistant  Collector  of\nCentral\t  Excise,  Calcutta  Division.\t The  rates   varied\naccording  to the provisions of Finance Act, 1951, and\t1956\nand  the  Additional  Duty  of\tExcise\t(Goods\tof   Special\nImportance) Act, 1957.\tThe Company was required to  furnish\nquarterly  consolidated price lists and the  particulars  of\ncigarettes  to be cleared were furnished by the\t Company  as\nrequired  by  Rule  9  of the  Central\tExcise\tRules.\t For\nfacilitating  collection of duty, the Company  maintained  a\nlarge  sum  of money in a Current Account with\tthe  Central\nExcise\tauthorities, who used to debit this account for\t the\nduty  leviable\ton each stock of cigarettes  allowed  to  be\nremoved.\nThe  Company used, to furnish its quarterly price  lists  to\nthe  Collector ,on forms containing nine columns  and  until\nJuly 1957, so long as this form was used by the Company,  no\ndifficulty  was experienced in checking prices.\t  But  after\nthis  column was dropped from the new form of six,  columns,\nthe  Excise  authorities  encountered  some  difficulty\t  in\nvaluing\t the  cigarettes  for  levying\tExcise\tDuty.\tThey\ntherefore,   changed  the  basis  of  assessment  from\t the\nDistributors  selling  price to the wholesale  cash  selling\nprice at which stockists or agents were selling the same  in\nthe open market.\nThe authorities informed the Company of this change of basis\non  5-11-58  by\t letter, which also  asked  the\t Company  to\nfurnish\t its  price lists immediately  for  determining\t the\ncorrect\t assessable  value  of\tits  cigarettes.   Two\tdays\nthereafter, the authorities served a notice upon the Company\ndemanding  payment  of Rs. 1,67,072,40 P. as  Basic  Central\nExcise\tDuty  and  Rs. 74,574,85 P.  as\t Additional  Central\nExcise\tDuty on ground of short levy for a certain brand  of\ncigarettes  cleared  from  Company's  Factory  between\t10th\nAugust\t1958, After another five days, the authorities\tsent\nanother\t notice\t demanding more than Rs. 6  lakhs  as  Basic\nCentral Excise\tDuty and more than Rs. 2 lakhs as Additional\nCentral Excise Duty.  On the following day, the\t authorities\nsent  a third notice under Rule 10-A of the  Central  Excise\nRules, demanding more than Rs. 40,000\/as Central Excise Duty\nand more than Rs. 16,000\/- as Additional Duty.\nThe  Company challenged these notices by a writ\t before\t the\nHigh  Court.,  The  High Court quashed the  notices  on\t the\nground that the Company had not been given an opportunity of\nbeing heard.  No appeal was filed by the other side  against\nthis decision, but when the case went back to the Collector,\nhe issued P. fresh notice on 24-4-1960.\t By this notice, for\ncertain periods, a sum of more than Rs. 10 lakhs was  levied\nas  Basic Central Excise Duty and a total sum of  more\tthan\nRs.  3\tlakhs as Additional Duty, and this amount  had\tbeen\nprovisionally debited in the Company's Account on the  basis\nof  the price list supplied by the Company and\tthe  Company\nwas informed that if it desired a personal hearing, it\n823\ncan  appear  before  the  authorities  to  make\t the   final\nassessment in accordance with law.\nThe Company challenged the validity of this notice dated 24-\n4-60 on the ground that the notice was barred by  limitation\nand was 'issued without jurisdiction, so that no proceedings\ncould  be taken.  The learned single Judge, as well  as\t the\nDivisional  Bench of the High Court allowed the petition  on\nthe ground that the notice was barred by time under Rule  10\nof  the Central Excise Rules because the notice was held  to\nbe fully covered by Rule 10 and by no other rule.  The\tcase\nwas certified under Art. 33(a), (b) and (d) for an appeal to\nthis  Court.  Rule 10 of the Central Excise  Rules  provides\nthat  when duties or charges have been short levied  through\ninadvertence or misconstruction etc., the person  chargeable\nwith  the duty so short levied, shall pay the deficiency  or\npay  the amount paid to him in excess on written  demand  by\nthe  proper  officer within three months from  the  date  on\nwhich the duty or charge is paid or adjusted in the  owner's\naccount,  if any, or from the date of making  the  refund.It\nwas  contended\tthat this was  substantially  a\t provisional\nassessment     covered by Rule 10-B.  The Division Bench  of\nthe High Court, however, refused to agree that the  impugned\nnotice\tof 24-460 fell under Rule, 10-A.  The  reason  given\nfor  this  refusal was that such a case\t was  neither  taken\nbefore\tthe learned single Judge, nor could be found in\t the\ngrounds,  of the appeal despite the fact that the  appellant\nhad ample opportunity of amending its Memorandum of  Appeal.\nAllowing the appeal.\nHELD  :\t (i.)  That the High Court  erroneously\t refused  to\nconsider  whether the impugned notice fell under Rule  10-A.\nThe  applicability  of\tRule 10-A was  very  much  in  issue\nbecause the Collector in his affidavit denied that Rule 10-A\nof  the said rules had any application to the facts  of\t the\ncase.\n(ii) It\t cannot be accepted that merely because the  current\naccount\t kept under Rule 9 indicated that an accounting\t had\ntaken  place,  there  was necessarily  a  legally  valid  or\ncomplete  levy.\t  The making of debit entries  was  only  on\nground of collection of the tax.  Even if payment or  actual\ncollection of tax could be spoken of as a defective levy, it\nwas only provisional and not fINal.  It could only be closed\nor invested with validity after carrying out the  obligation\nto  make  an assessment that really determines\twhether\t the\nlevy is short or complete.  It is not a faCtual or  presumed\nlevy  which could prove an assessment.\tThis has to be\tdone\nby  proof  of  the  actual  steps  taken  which\t  constitute\nassessment. [836D]\nA mechanical adjustment, or settlement of accounts by making\ndebit  entries was gone through in the present case, but  it\ncannot be said that any such adjustment is assessment  which\nis a quasi-judicial process and involves due application  of\nmind  to the facts, as well as to the requirements  of\tlaw.\nRule  10 and 10-A seems to be so widely worded as  to  cover\nany inadvertence error etc.;  whereas Rule 10-A would appear\nto  cover  any deficiency in duty if the duty  has  for\t any\nreason,\t been short-levied, except that it would be  outside\nthe  purview  of Rule 10-A if its  collection  is  expressly\nprovided  or by any rule.  Both the rules as they  stood  at\nthe  relevant  time,  deal with\t collection,  and  not\twith\nassessment.  In N. B. Sanjana's case (A.I.R. 1971 S.C. 2039)\nthis  Court indicated that Rule 10-A which was residual.  in\ncharacter,  would  be inapplicable if a case fell  within  a\nspecified category of cases mentioned in Rule 10. It\t was\npointed\t out  in  Sanjana's case that  the  reason  for\t the\naddition\n824\nof the new rule 10-A was a decision of the Nagpur (Chotabhai\nJethabhai's  case; A.I.R. 1952 Nagpur 139), so that a  fresh\ndemand\tmay be made on a basis altered by law.\t The  excise\nauthorities  had  made a fresh demand under Rule  10-A,\t the\nvalidity  of  which was challenged, but it was upheld  by  a\nFull  Bench  decision  of the High Court  of  Nagpur.\tThis\nCourt,\tin  Chotabhai  Jethabhai's case\t also  rejected\t the\nassessee's  claim  that\t Rule 10-A  was\t inapplicable  after\npointing out that the new rule was specifically designed for\nthe  enforcement of the demand like the present one.  [836F-\n837E]\n(iii)The present case, therefore, falls within the residuary\nclause\tof unforeseen cases from the provisions of S.  4  of\nthe Act, read with Rule 10-A, an implied power to carry\t out\nor complete an assessment, not specifically provided for  by\nthe rules, can be inferred.  Therefore, it is wrong to\thold\nthat the case falls under Rule 10 and not under Rule 10-A.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION:\t Civil Appeal  No.  1101  of
\n1967,.\n<\/p>\n
Appeal\tby  certificate from the judgment  and\torder  dated
\nSeptember 28, 1966 of the Calcutta High Court in Appeal\t No.
\n7 of 1965.\n<\/p>\n
G.   L.\t Sanghi,  B. D. Sharma and S. P.   Nayar,  for\t;the
\nappellant.\n<\/p>\n
A.   K. Sen, B. P. Maheshwari and Shambhu Nath Chunder,\t for
\nthe respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nBeg,  J. The National Tobacco Co. of India Limited  (herein-
\nafter  referred to as “the Company”), the Respondent in\t the
\nappeal before us, manufactures Cigarettes, at its Factory in
\nAgrapara, upon which Excise duty is -vied by the  appellant,
\nthe Assistant Collector of Central Excise, Calcutta Division
\n(hereinafter referred to as “the Collector”).  The rates  at
\nwhich the Excise duty was imposed upon the cigarettes of the
\nCompany under the provisions of the Central Excise and\tSalt
\nAct  of\t 1944 (hereinafter referred to as  “the\t Act”)\twere
\nvaried, from time to time, by the provisions of Finance Acts
\nof 1951 and 1956 and the Additional Duties of Excise  (Goods
\nof   Special  Importance)  Act\tof  1957.    The   Collector
\nmaintained an office at the factory itself for the levy\t and
\ncollection  of\ttax.  The Company was  required\t to  furnish
\nquarterly consolidated price-lists which used to be accepted
\nfor  purposes  of enabling the Company to clear\t its  goods,
\nbut,  according to the Collector, these used to be  verified
\nafterwards  by\tobtaining evidence of actual  sales  in\t the
\nmarket\tbefore issuing final certificates that the duty\t had
\nbeen fully paid up.  The particulars of the cigarettes to be
\ncleared\t were  furnished by the Company on  forms  known  as
\nA.R.1 forms required by Rule 9 of the Central’ Excise Rules.
\nFor facilitating collection of duty, the Company, maintained
\na large sum of money in a current account with the
\n 825<\/span>
\nCentral Excise authorities who used to debit in this account
\nthe duty leviable on each stock of cigarettes allowed to  be
\nremoved.   This current account, known as  “personal  ledger
\naccount”,  was maintained under the third proviso to Rule  9
\nwhich lays down:\n<\/p>\n
\t      9(1)  \"\t       *    *\t    *\t    *\t   *\n\t      *\n<\/pre>\n
\t      Provided\talso that the Collector may,  if  he
\n\t      thinks  fit, instead of requiring\t payment  of
\n\t      duty  in respect of each separate\t consignment
\n\t      of  goods removed from the place\tor  premises
\n\t      specified in this behalf, or from a store room
\n\t      or  warehouse  duly  approved,  appointed\t  or
\n\t      licensed\tby him keep with any person  dealing
\n\t      in such goods an account-current of the duties
\n\t      payable  thereon\tand such  account  shall  be
\n\t      settled  at intervals not exceeding one  month
\n\t      and the account-holder shall periodically make
\n\t      deposit  therein sufficient in the opinion  of
\n\t      the  Collector  to cover the duty due  on\t the
\n\t\t\t    goods intended to be removed from the
\nplace  of
\n\t      production, curing, manufacture or storage”.
\nIt  appears that the company used to furnish  its  quarterly
\nprice-lists  to\t the  Collector\t on  forms  containing\tnine
\ncolumns\t including  one to show the  “distributors’  selling
\nprice”.\t  Until July 1957, so long as this form was used  by
\nthe Company, no difficulty seems to have been experienced in
\nchecking  the  prices.\tBut, after this column\twas  dropped
\nfrom  the  new form of six columns, the\t excise\t authorities
\nseem  to  have encountered some difficulty  in\tvaluing\t the
\ncigarettes for vying excise duty.  They.’ therefore, changed
\nthe  basis  of\tassessment itself  from\t “the  Distributors”
\nSelling Price” to “the wholesale cash selling price at which
\nstockists  or agents are selling the same to an\t independent
\nbuyer  in the open market”.  They held the view that such  a
\ncharge\tcould  be made having regard to\t the  provisions  of
\nSection 4 of the Act.  The Deputy Superintendent of  Central
\nExcise informed the Company,; of this change of basis on  5-
\n11-1958 by a letter which also asked the Company to  furnish
\nits  price  lists immediately “for determining\tthe  correct
\nassessable  value”  of its cigarettes.\t On  7th  November,,
\n1958,  the  Deputy Superintendent served a notice  upon\t the
\nCompany\t demanding, payment of a sum of Rs.  1.67,072,40  as
\nbasic  Central Excise duty and Rs. 74,574,85  as  additional
\nCentral\t Excise duty on account of short levy for a  certain
\nbrand of cigarettes cleared from the Company’s factory\tfrom
\n10th August, 1958 to 5th November, 1958.  On 12-11-1958, the
\nDeputy Superintendent sent another notice demanding  payment
\nof a sum of Rs. 6,16,467,49 as basic Central Excise duty and
\nRs. 2,10,492,15 as additional central excise duty for  short
\nlevy  in respect of some brands of cigarettes  cleared\tfrom
\nthe  factory between 1-11-1957 to 9-8-1958.  On\t 13-11-1959.
\n(the Deputy Superintendent sent a
\n826<\/span>
\nthird  notice to the Company under Rule 10-A of the  Central
\nExcise\tRules  1944, demanding payment of Rs.  40,726,48  as
\nbasic  Central Excise duty and Rs. 16,958.50  as  additional
\nduty for short levy in respect of various brands.
\nThe Company applied to the Calcutta High Court under Article
\n226 of the Constitution against the three notices  mentioned
\nabove,\tone  of which specifically under Rule 10-A  and\t the
\nother  two  under Rule 10 of the Central  Excise  Rules.   A
\nlearned\t single Judge of that Court quashed the\t notices  by
\nhis  order of 15-2-1960 on the ground that the\tCompany\t had
\nnot  been given any opportunity of being heard so as  to  be
\nable  to meet the material collected behind its\t back  which
\nformed\tthe basis of the demands under the  aforesaid  three
\nnotices.   On a joint request of both ides. the\t High  Court
\ndid not decide the question whether notices of demand  ,were
\ntime barred.  But, the learned Judge said :\n<\/p>\n
\t      “Nothing\tin  this  order\t will  prevent\t the
\n\t      respondent  from proceeding to take  any\tstep
\n\t      that  may be necessary for such assessment  or
\n\t      for   the\t realisation  of  the\trevenue\t  in
\n\t\t\t    accordance with the law”.\n<\/p><\/blockquote>\n
The  learned  Judge  had also held that\t neither  the  basis
\nadopted by the company nor that put forward by the Collector
\nwas  correct.\tThe learned Judge pointed  out\tthe  correct
\nbasis  which was considered by him to be in consonance\twith
\nthe  provisions\t of  Section 4, sub.s(a)  of  the  Act.\t  He
\nindicated  the various factors required by Section 4 of\t the
\nAct  which  had to be taken\t\t  into\taccount\t and
\nheld:\n<\/p>\n
\t      “The  determination as to whether a  wholesale
\n\t      market  exists at the site of the\t factory  or
\n\t      the premises of manufacture or production etc.
\n\t      or  which is the nearest wholesale market,  or
\n\t      the price at which the goods or goods of\tlike
\n\t      kind  and\t quality are capable of\t being\tsold
\n\t      must necessarily be a complicated question and
\n\t      must be determined carefully upon evidence and
\n\t      not  arbitrarily.\t Such  determination  cannot
\n\t      wholly  be  made\tex-parte, that\tis  to\tsay,
\n\t      behind   the   back  of\tthe   assessee.\t   A
\n\t      satisfactory determination can only be made by
\n\t      giving  all  information to the  assessee\t and
\n\t      after  giving the assessee an  opportunity  of
\n\t      establishing   his  own  point  of  view,\t  or
\n\t      checking\tand\/or\tchallenging any material  or
\n\t      evidence\tupon which the\tExcise\t Authorities
\n\t      wish to depend.”\n<\/p><\/blockquote>\n
As no appeal was filed by either side against this decision,
\nit  became  final and binding between parties before  us  so
\nthat  the  question  whether the High  Court  has  correctly
\ninterpreted Section 4 of the Act in determining the basis on
\nwhich  the  excise duty leviable could be  assessed  is\t not
\nunder consideration here.\n<\/p>\n
 827<\/span><\/p>\n
When the case went back to the Collector, he issued a  fresh
\nnotice on 24-4-1960.  As the validity of this notice is\t the
\nreal  question now in issue in the appeal before us, it\t may
\nbe reproduced in toto here.  It turns as follows:\n<\/p>\n
\t      Registered A\/D
\n\t      GOVERNMENT’ OF INDIA
\n\t\t      Collectorate of Central Excise
\n\t      Office of the Assistant Collector of Central Excise,
\n\t       Calcutta I Division (5, Clive Row), Calcutta
\n\t\t\t\t  NOTICE
\n\t      C.    No. VI(b)14\/3\/58\/3886 Dated 21st April.,
\n\t      1960<\/span>
\n\t      TO
\n\t      M\/s.   National  Tobacco\tCo.  (India)   Ltd.,
\n\t      Agarpara,
\n\t      24 Parganas.\n<\/p><\/blockquote>\n
\t      In  connection with the assessment of  Central
\n\t      Excise duties for the periods :\n<\/p><\/blockquote>\n
\t      1.    from 1st October, 1957 to 5th  November,
\n\t      1958  in respect of 316,885,000 of “No.\tTen”
\n\t      brand Cigarettes.\n<\/p><\/blockquote>\n
\t      II.   from 1st January, 1958 to 28th January ,
\n\t      1958  in respect of 6,600,000 of “D.L.T.\tMag”
\n\t      Cigarettes.\n<\/p><\/blockquote>\n
\t      III.  from 1st January, 1958 to 5th  February,
\n\t      1958  in\trespect of 9594,000  of\t “May  Pole”
\n\t      Cigarettes’.\n<\/p><\/blockquote>\n
\t      IV.   from 1st January, 1958 to 7th  February,
\n\t      1958  in\trespect of 3143,500  “Carltons\tGold
\n\t      Seal” Cigarettes.\n<\/p><\/blockquote>\n
\t      V.    from  1st January 1958 to 31st  January,
\n\t      1958  in\trespect of 1471,250 of\t“John  Peel”
\n\t      Cigarettes.\n<\/p><\/blockquote>\n
\t      VI.   from 1st January, 1958 to 16th  January,
\n\t      1958 in
\n\t      respect\t of   8200,000\tof   “Light   House”
\n\t      Cigarettes.\n<\/p><\/blockquote>\n
\t      VII.  from 1st January, 1958 to 16th  January,
\n\t      1958<\/span>
\n\t      in   respect  of\t9070,000  of   “Gold   Link”
\n\t      Cigarettes.\n<\/p><\/blockquote>\n
Please\tnote that a sum of Rs. 10,05,133.25 np.\t (Rupees  10
\nlads five thousand one hundred thirty three and\t twenty-five
\nnaya  paise only) as basic Central Excise duty and  a  total
\nsum  of Rs. 3,43,208.25 np. (Rupees three  lacs\t forty-three
\nthousand two hundred eight and twenty-five naya paise  only)
\nas  additional duty had been provisionally debited  in\tyour
\naccount on the basis of the price list supplied to us by you
\nfor the quarters
\n828<\/span>\n<\/p>\n
(i)  beginning October, 1957 dated 17th October, 1957.\n<\/p>\n
(ii) beginning January, 1958 dated nil.\n<\/p>\n
(iii)\t  beginning April, 1958 dated 14th April, 1958, and\n<\/p>\n
(iv) beginning July, 1958 dated 14-7-58, and\n<\/p>\n
(v)  beginning October, 1958, dated nil.\n<\/p>\n
2.   We now propose to complete the assessments for the said
\nperiods\t from the evidence in our possession from  which  it
\nappears :-\n<\/p>\n
\t       (i)that there is no wholesale market for\t the
\n\t      goods  covered by your price lists in or\tnear
\n\t      the  factory or the ‘Place of manufacture\t and
\n\t      that the nearest wholesale market for the sale
\n\t      is the Calcutta market.\n<\/p><\/blockquote>\n
\t      (ii)  the wholesale cash price of the articles
\n\t      in question at the time of sale and\/or removal
\n\t      of the ,,goods at the Calcutta market at which
\n\t      goods of like kind or quality are sold or\t are
\n\t      capable of being sold have been ascertained by
\n\t      us  and the evidence at our  disposal  reveals
\n\t      that  the prices quoted by you in your  price-
\n\t      list are-not correct.\n<\/p><\/blockquote>\n
3.  The prices at,– as per chart annexed hereto  which\t has
\nbeen prepared on the basis of available evidence in terms of
\nsection\t 4 (a) , of the Central Excise and Sale\t Act,  1955.
\nThe  vouchers mentioned in the chart are available for\tyour
\ninspection at any time next week during office hours.  After
\nobtaining  inspection of the vouchers please attend  at\t our
\noffice at 5 Clive Row, Calcutta on 2nd May 1960 at 10.30  a.
\n‘M. for the purpose of discussing the points mentioned above\n<\/p>\n
4.   We\t are  prepared to give you a personal  hearing\twith
\nregard\tto all the points indicated above.  If you have\t any
\nevidence in support of your contention you are at liberty to
\nproduce the same at the time of bearing.  Thereafter  please
\nnote  that  we\tpropose\t to make  the  final  assessment  in
\naccordance with law.\n<\/p>\n
Sd.\/- (N.  D. MUKhERJEE)
\nAssistant Collector of Central Excise,
\nCalcutta I Division, Calcutta”\n<\/p>\n
The Company challenged the validity of this notice by  means
\nof  a second petition for Writs of Prohibition and  Mandamus
\nagainst\t the  Collector on the ground that  the\t notice\t was
\nbarred by time
\n 829<\/span>
\nand  was issued without jurisdiction so that no\t proceedings
\nfounded\t on  it\t could be taken.  It  was  prayed  that\t the
\nCollector may be ordered to cancel the notice.\tThe petition
\nwas  allowed by a learned Single Judge of the Calcutta\tHigh
\nCourt  on  3-1-1964  on the ground that such  a\t notice\t was
\nbarred\tby the provisions of Rule 10 of the  Central  Excise
\nRules  ‘because the notice was held to be fully\t covered  by
\nRule 10 and by no other rule.  A Division Bench of the\tHigh
\nCourt  confirmed  this view on 8-9-1966\t and  dismissed\t the
\nCollector’s  appeal.  The case having been certified,  under
\nArticle\t 133(a),  (b) and (c) for an appeal to\tthis  Court,
\nthis question is before us now.\n<\/p>\n
The  learned Single Judge as well as the Division  Bench  of
\nthe  Calcutta  High  Court said that there  was\t not  enough
\nmaterial   on  record  to  conclude  that  there   was\t any
\n“provisional  assessment” under Rule 10-B (deleted  on\t1-8-
\n1959 and substituted by Rule 9-B) which laid down:\n<\/p>\n
\t      “10B.  PROVISIONAL ASSESSMENT OF DUTY
\n\t      (1)   Notwithstanding  anything  contained  in
\n\t      these rules\n<\/p><\/blockquote>\n
\t      (a)   There  the owner of any excisable  goods
\n\t      makes and subscribed a declaration before\t the
\n\t      proper Officer to the effect that he is unable
\n\t      for   want  of  full  information\t  to   state
\n\t      precisely\t the  real value or  description  of
\n\t      such goods in the proper Form : or\n<\/p><\/blockquote>\n
\t       (b)  Where   the\t owner\tof  any\t goods\t has
\n\t      furnished\t full information in regard  to\t the
\n\t      real  value or description of the\t goods,\t but
\n\t      the  proper Officer requires further proof  in
\n\t      respect thereof; or\n<\/p><\/blockquote>\n
\t      (c)   Where   the\t proper\t Officer  deems\t  it
\n\t      expedient\t to subject any excisable  goods  to
\n\t      any chemical or other test,
\n\t      The  proper Officer may direct that  the\tduty
\n\t      leviable\ton such goods may, pending the\tpro-
\n\t      duction  of  such\t information  or  proof\t  or
\n\t      pending  the completion of any such  test,  be
\n\t      assessed provisionally.\n<\/p><\/blockquote>\n
(2) When the owner of any goods in respect of which the duty
\nhas  been assessed provisionally under sub-rule(1) has\tpaid
\nsuch duty, the proper Officer may make an order allowing the
\ngoods to be cleared for home consumption or for exportation,
\nas case may be and such order shall be sufficient  authority
\nfor the removal of the goods by the owner:-\n<\/p>\n
\t      Provided that before making any such order the
\n\t      proper  officer  shall require  the  owner  to
\n\t      furnish a bond in the proper form binding\t the
\n\t      Owner to pay the differen-\n<\/p><\/blockquote>\n
\t      830<\/span><\/p>\n
\t      tial  duty When the final assessment is  made.
\n\t      (3)  When the duty leviable on such  goods  is
\n\t      assessed\t finally  in  accordance  with\t the
\n\t      provisions   of\tthese\trules,\t the\tduty
\n\t      provisionally   assessed\tshall  be   adjusted
\n\t      against the duty finally assessed, and if\t the
\n\t      duty  provisionally assessed, falls short\t of,
\n\t      or is in excess of, the duty finally assessed.
\n\t      the   owner  of  the  goods  shall   pay\t the
\n\t      deficiency or be entitled to a refund, as\t the
\n\t      case may be.”\n<\/p><\/blockquote>\n
No  order directing provisional assessment, contemplated  by
\nRule 10-B, (applicable at the relevant time) has been placed
\nbefore\tus.  Nor was the Company asked by the  Collector  to
\nfurnish a bond to pay up the difference after making a final
\nassessment  as\twas  required  under  Rule  10-B.   It\twas,
\nhowever, contended for the Collector that the execution of a
\nbond,  for  the\t satisfaction of  the  Collector,  could  be
\ndispensed with in a case where the Company kept a large\t sum
\nof  money  in deposit in the “personal\tledger\taccount”  to
\nguarantee its ability to meet its liabilities.\tIt was\talso
\npointed\t out  that the learned Single Judge as well  as\t the
\nDivision Bench had found that the practice of  provisionally
\napproving  the price-lists supplied by the Company,  pending
\nacceptance of their correctness after due verification,\t had
\nbeen established as a mater of fact.  It was submitted\tthat
\nthis was substantially a “provisional assessment” covered by
\nRule  10-B,  although it may not conform  to  the  technical
\nprocedural requirements of such an assessment.
\nEven  if the making of debit entries could, on the facts  of
\nthe  case, be held to be merely provisional think that\twhat
\ntook   place  could  not  be  held  to\tbe  a\t“provisional
\nassessment”  within  the  provisions  of  Rule\t10-B   which
\ncontemplated  the  making  of an  order\t directing  such  an
\n“assessment” after applying_ the mind to the need for it.
\nBefore\tproceeding  further we will deal with  the  question
\nwhether\t the Division Bench correctly refused to  permit  an
\nargument  that the impugned notice of 24-4-1960\t fell  under
\nRule 10-A.  The ground given for this refusal was that\tsuch
\na  case was neither taken before ‘the learned  Single  Judge
\nnor could be found in the grounds of appeal despite the fact
\nthat  the  appellant had ample opportunity of  amending\t its
\nMemorandum of appeal.  The appellant has, however, relied on
\na   previous  intimation  given\t to  the  counsel  for\t the
\nrespondent  that such a contention would be advanced at\t the
\nhearing of the appeal and also on an application dated 21-3-
\n1966  praying for permission to add the\t alternative  ground
\nthat  the  impugned notice fell under Rule 10-A.   We  think
\nthat  this  refusal  was  erroneous  for  several   reasons.
\nFirstly the Company having come to Court for a Writ of\tPro-
\nhibition  on the ground that the impugned notice was  issued
\nwith-\n<\/p>\n
\t\t\t    831<\/span><\/p>\n
out jurisdiction had necessarily to establish the case which
\nit  sets, up in paragraph 25 of its Writ Petition, that\t the
\nnotice was not authorised by the rules including Rule  10-A.
\nAs  the\t notice of 21-4-1960 was followed on 4-5-1960  by  a
\ncorrection by another notice of certain statements both\t the
\nnotices were assailed in paragraph 25 (ii) in the  following
\nwords
\n\t      “The  respondent\thas mala  fide\tand  without
\n\t      jurisdiction issued the said impugned  notices
\n\t      pretending to falsely state that the aggregate
\n\t      sum  therein mentioned has been  provisionally
\n\t      debited  in  your\t petitioner’s  account\t and
\n\t      pretending  to  intimate, to  your  petitioner
\n\t      that  the respondent proposed to complete\t the
\n\t      assessment, And thereby, he is seeking,  under
\n\t      the guise of completing an alleged  assessment
\n\t      which  had already been completed and duty  in
\n\t      respect  whereof had already been paid, to  do
\n\t      indirectly  what\the  could  not\tdo  directly
\n\t      inasmuch as Rule 10A of the said Rules has  no
\n\t      application  to  the  facts of  the  case\t and
\n\t      inasmuch\tas recovery of any duty which  might
\n\t      have  been short levied under Rule 10  of\t the
\n\t      Rules is barred by limitation”.\n<\/p>\n
This  assertion\t was  met by a\tcategorical  denial  by\t the
\nCollector  in paragraph 26(ii) of the Collector’s  affidavit
\nin  reply where it was stated that it was denied “that\tRule
\n10-A  of the said Rules had no application to the  facts  of
\nthe  case as alleged or that the recovery of any duty  which
\nhad been short levied was barred by limitation under Rule 10
\nof  the\t said  Rules  as alleged  or  at  all”.\t  Thus,\t the
\napplicability\tof  Rule  10-A\twas  very  much\t in   issue.
\nSecondly,  We find, from the Judgment of the learned  Single
\nJudge  that, as the burden lay upon the petitioning  Company
\nto  demonstrate, for obtaining a Writ of  Prohibition,\tthat
\nthe  impugned  notice was not authorised by  any  rule,\t its
\ncounsel had contended’,, inter-alia, that the notice did not
\nfall  under Rule 10-A.\tThe question was thus considered  by
\nthe learned Single Judge.  Thirdly, the question whether the
\nCollector  did\tor  did\t not have the  power  to  issue\t the
\nimpugned  notice  under or with the aid of Rule 10-A  was  a
\nquestion  of law and of jurisdiction. going to the  root  of
\nthe  case,  which could be decided  without  taking  further
\nevidence.   Indeed, as the burden was upon  the\t petitioning
\nCompany to show that the impugned notice was issued  without
\njurisdiction,  a finding that the notice did not  fall\teven
\nwithin Rule 10-A was necessary before a Writ of\t Prohibition
\ncould issue at all.  We think that the Division Bench  ought
\nto  have  permitted the question to be\targued,\t subject  to
\ngiving due opportunity to the petitioning Company to meet it
\non such,
\n832<\/span>
\nterms  as the Court thought fit, even if the point  was\t not
\ntaken in the grounds of appeal.\t Therefore, we will consider
\nthis question also.\n<\/p>\n
\t      Rule  10\tof the Central Excise Rules, ran  as
\n\t      follows
\n\t      “10.   Recovery  of duties or  charges  short-\n<\/p>\n
\t      levied, or erroneously refunded-\n<\/p>\n
\t      When duties or charges have been short-levied,
\n\t      through inadvertence, error, collusion or mis-
\n\t      construction  on\tthe part of an\tofficer,  or
\n\t      through  misstatement  as\t to  the   quantity,
\n\t      description or value of such goods on the part
\n\t      of the owner, or when any such duty or charge,
\n\t      after  having been levied, has been  owing  to
\n\t      any  such\t ’cause, erroneously  refunded,\t the
\n\t      person chargeable with the duty or charge,  so
\n\t      short-levied, or to whom such refund has\tbeen
\n\t      erroneously made, shall pay the deficiency  or
\n\t      pay  the amount paid to him in excess, as\t the
\n\t      case  may be, on written demand by the  proper
\n\t      officer  being made within three\tmonths\tfrom
\n\t      the date on which the duty or charge was\tpaid
\n\t      or adjusted in the owners account-current,  if
\n\t      any, or from the date of making the refund”.
\n\t      Rule 10-A reads as follows:\n<\/p>\n
\t      “10-A  Residuary powers for recovery  of\tsums
\n\t      due to Government.-\n<\/p>\n
\t      Where  these  Rules do not make  any  specific
\n\t      provision\t for the collection of any duty,  or
\n\t      of any deficiency in duty if the duty has\t for
\n\t      any reason been short levied, or of any  other
\n\t      sum  of  any  kind  payable  to  the   Central
\n\t      Government under the Act or “these Rules, such
\n\t      duty,  deficiency in duty or sum shall,  on  a
\n\t      written demand made by the proper officer,  be
\n\t      paid  to\tsuch  person and at  such  time\t and
\n\t      place, as the proper officer may specify.”
\nThe  two  rules set out above occur in Chapter\tIII  of\t the
\nCentral\t Excise Rules 1944 headed “Levy and Refund  of,\t and
\nExemption from Duty”.  Rule 7 merely provides that the\tduty
\nleviable  on the goods will be paid at such time  and  place
\nand to such, person as may be required by the rules.  Rule 8
\ndeals  with power to authorise exemptions in special  cases.
\nRule  9(1)  provides for the time and manner of\t payment  of
\nduty.  This rule indicates that ordinarily the duty leviable
\nmust  be  paid before excisable goods are removed  from\t the
\nplace where they are manufactured or stocked, and only after
\nobtaining  the\tpermission of the  officer  concerned.\t The
\nthird proviso
\n 833<\/span>
\nto  Rule  9  has  already been set  out\t above.\t  Rule\t9(2)
\nprovides for the recovery of duty and imposition of  penalty
\nin  cases  where  Rule 9 sub. r (1) is\tviolated.   Rule  9A
\nspecifies the date with reference to which the duty  payable
\nis to be determined.  We are ,not concerned here with  Rules
\n11 to 14 dealing with refunds, rebates, exports under  bonds
\nand certain penalties for breaches of Rules.
\nRule 52 and 52-A, found in Chapter V, dealing with a  number
\nof  matters  relating to “Manufactured Goods”, may  also  be
\ncited here :\n<\/p>\n
\t      “52.   Clearance on payment of  duty-When\t the
\n\t      manufacturer   desires  to  remove  goods\t  on
\n\t      payment  of duty, either from the place  or  a
\n\t      premise  specified  under\t rule 9\t or  from  a
\n\t      store-room or other place of storage  approved
\n\t      by the Collector under rule 47, he shall\tmake
\n\t      application in triplicate (unless otherwise by
\n\t      rule or order required) to the proper  officer
\n\t      in the proper Form and shall deliver it to the
\n\t      Officer  at least twelve hours (or such  other
\n\t      period  as may be elsewhere prescribed  or  as
\n\t      the  Collector  may  in  any  particular\tcase
\n\t      require  or  allow) before it is\tintended  to
\n\t      remove   the  goods.   The   officer,   shall,
\n\t      thereupon,  assess the amount of duty  due  on
\n\t      the  goods and on production of evidence\tthat
\n\t      this  sum has been paid into the\tTreasury  or
\n\t      paid  to the account of the Collector  in\t the
\n\t      Reserve  Bank  of India or the State  Bank  of
\n\t      India, or has been despatched to the  Treasury
\n\t      by  money-order  shall allow the goods  to  be
\n\t      cleared”.\n<\/p><\/blockquote>\n
\t      “52A.   Goods to be delivered on a Gate  pass-
\n\t      (1) No excisable goods shall be delivered in a
\n\t      factory except under a gatepass in the  proper
\n\t      form  or in such other form as  the  Collector
\n\t      may  in any particular case or class of  cases
\n\t      prescribe\t signed by the owner of the  factory
\n\t      and countersigned by the proper officer.”\n<\/p><\/blockquote>\n
It   will  be  noticed\tthat  in  Chapter  III,\t  the\tterm
\n“assessment”  was  used\t only  in  the\tformer\trule   10-B,
\ncorresponding  to the present rule 9-B, while  dealing\twith
\nprovisional assessment of duty.\t But, Rule 52 shows that  an
\n“assessment”   is   obligatory\tbefore\tevery\tremoval\t  of
\nmanufactured goods.  The rules however, neither specify\t the
\nkind of notice which should precede assessment nor lay\tdown
\nthe  need  to pass an assessment order.\t All we can  say  in
\nthat  rules of natural justice have to be observed  for,  as
\nwas  held  by  this  Court in K. T.  M.\t Nair  v.  State  of
\nKerala(1), “the assessment of a tax on person or property is
\natleast of a quasi-judicial character”.\n<\/p>\n
(1)  [1961] 3 S.C.R. 77 @ 94.\n<\/p>\n
L–Sup.CI\/73
\n834<\/span>
\nSection\t 4  of the Act lays down what  would  determine\t the
\nvalue  of  excisable goods.  But, the Act  itself  does\t not
\nspecify\t a procedure for assessment presumably because\tthis
\nwas meant to be provided for by the rules.  Section 37(1) of
\nthe  Act  lays down that “the Central  Government  may\tmake
\nrules  to  carry  into effect the  purposes  of\t this  Act”.
\nSection 37, sub. s (2), particularises without prejudice  to
\nthe generality of the foregoing power” that “such rules\t may
\nprovide\t for  the  assessment and collection  of  duties  of
\nexcise, the authorities by whom functions under this Act are
\nto  be discharged , the issue of notice\t requiring  payment,
\nthe  manner  in\t which the duty shall be  payable,  and\t the
\nrecovery  of  duty not paid”.  It is clear from\t Section  37
\nthat  ”\t assessment and collection of duties of\t excise”  is
\npart of the purposes of the Act, and Section 4, dealing with
\nthe  determination  of value for the purposes of  the  duty,
\nalso seems to us to imply the existence of a  quasi-judicial
\npower  to  assess  “he duty payable  in\t cases\tof  dispute.
\n“Collection”, seems to be a term used for a stage subsequent
\nto  “assessment”.  In a case where the basis of\t a  proposed
\nassessment is disputed or where contested questions of\tfact
\narise, a quasi-judicial procedure has to be adopted so as to
\ncorrectly  assess the tax payable.  Rule 52 certainly  makes
\nan  “assessment” obligatory before removal of  goods  unless
\nthe procedure for a “provisional assessment” under Rule 10-B
\n(now  rule 9-B) is adopted.  But, if no quasi-judicial\tpro-
\nceeding, which could be described as an “assessment”  either
\nunder  Rule 52 or “Provisional assessment” under  Rule\t10-B
\n(now Rule 9-B) takes place at the proper time and in accord-
\nance  with the rules, is the Collector\tdebarred  completely
\nafterwards  from assessing or completing assessment of\tduty
\npayable\t ?  That seems to us to be the real question  to  be
\ndecided here.\n<\/p>\n
One of the arguments on behalf of the Collector was that  no
\n“assessment”,  for the purpose of determining the  value  of
\nexcisable  goods, having taken place in the case before\t us,
\nthere  could be no “levy” in the eye of law.  It  was  urged
\nthat,  even  if there was no  “provisional  assessment”,  as
\ncontemplated by Rule 10-B, whatever took place could, at the
\nmost, be characterised as an “incomplete assessment”,  which
\nthe  Collector\tcould proceed to complete,  even  after\t the
\nremoval\t of  the goals.\t It was contended that such  a\tcase
\nwould  be  outside  the purview of Rule 10  as\tit  was\t not
\ndetermined whether there actually was a short levy.   Hence,
\nit  was\t submitted  there was no question  of  a  proceeding
\nbarred by the limitation prescribed for making a The  demand
\nfor a short levy in certain specified circumstances.Division
\nBench, while repelling this contention, held :\n<\/p>\n
\t      “In  the\tpresent case, it  appears  that\t the
\n\t      procedure\t adopted  was that  the\t respondents
\n\t      issued a price list
\n\t       835<\/span>
\n\t      quarterly.   In  that price  list,  they\tgave
\n\t      their  own  estimate as to the  value  of\t the
\n\t      goods.\tFor  the  time\tbeing\tthe   excise
\n\t      authorities  accepted the value so given,\t and
\n\t      gave a provisional certificate to that effect,
\n\t      intending\t to check the market value and\tthen
\n\t      finally  determine  the value later  on.\t The
\n\t      procedure for issuing price list of  approving
\n\t      the  same provisionally and accepting  payment
\n\t      therefore\t according  to the estimate  of\t the
\n\t      manufacturer,  is a procedure which is not  to
\n\t      be found either in the Act or the Rules”.\n<\/p><\/blockquote>\n
It may be observed that this finding, that the procedure  of
\na  provisional\tacceptance of the  Company’s  estimates\t was
\nadopted,  seems inconsistent with another finding that\twhat
\ntook  place  was a final adjustment of accounts\t within\t the
\npurview\t of  the  3rd  proviso to Rule\t9,  set\t out  above,
\nconstituting  a\t “levy” accord to law.\tThe  Division  Bench
\nappears\t to  have  regarded  this  procedure  of  an  almost
\nmechanical  levy  as  equivalent to  a\tcomplete  assessment
\nfollowed by the payment of the tax which constituted a valid
\n“levy”.\t  Hence,  it concluded that, there being  a  legally
\nrecognised  levy, the only procedure open to  the  Collector
\nfor questioning its correctness was one contemplated by Rule
\n10 so that a demand for a short levy had to be made within 3
\nmonths\tof  the final “settlement of accounts”\tas  provided
\nspecifically by Rule 10.  The Division Bench considered this
\nprocedure  to be an alternative to an assessment under\tRule
\n52 at the proper time and also :to a provisional  assessment
\nin  accordance\twith the procedure laid down in\t Rule  10-B.
\nBut, to regard the procedure under Rule 10 as an alternative
\nto an assessment would be to overlook that it presupposes an
\nassessment which could be reopened on specified grounds only
\nwithin the period given there.\n<\/p>\n
The term “levy” appears to us to be wider in its import than
\nthe term “assessment”.\tIt may include both “imposition” of
\na tax as well as assessment.  The term “imposition” is gene-
\nrally  used  for the, levy of a tax or duty  by\t legislative
\nprovision  indicating the subject matter of the tax and\t the
\nrates  at which it has to be taxed.  The term  “assessment”,
\non the other hand, is generally used in this country for the
\nactual\tprocedure adopted in fixing the liability to  pay  a
\ntax  on account of particular goods or property or  whatever
\nmay  be\t the  object of the tax in  a  particular  case\t and
\ndetermining  its  amount.  The Division\t Bench\tappeared  to
\nequate\t“levy”\twith  an “assessment” as well  as  with\t the
\ncollection of a tax when it. held that “when the payment  of
\ntax is enforced, there is a levy”.  We think that,  although
\nthe connotation of the term “levy” seems wider than that  of
\n“assessment”, which it includes, yet, it does not seem to
\n836<\/span>
\nus   to\t extend\t to  “collection”.   Article  265   of\t the
\nConstitution   makes  a\t distinction  between\t“levy”\t and
\n“collection”.  We also find that in N. B. Sanjana  Assistant
\nCollector   of\tCentral\t Excise,  Bombay  &  Ors.   v.\t The
\nElphinstone  Spinning  & Weaving Mills Co.  Ltd.,A<\/a>(1),\tthis
\nCourt made a distinction between “levy” and “collection”  as
\nused in the Act and the Rules before us.  It said there with
\nreference to Rule 1 0 :\n<\/p>\n
\t       “We are not inclined to accept the contention
\n\t      of  of Dr. Syed Mohammad that  the  expression
\n\t      ‘levy’  in Rule 10 means actual collection  of
\n\t      some  amount.  The charging provision  Section
\n\t      3(1)  specifically  says.\t  ‘There  shall\t  be
\n\t      levied  and collected in such a manner as\t may
\n\t      be prescribed the duty of excise . . .’ It  is
\n\t      to be noted that subsection (i) uses both\t the
\n\t      expressions  “levied and collected”  and\tthat
\n\t      clearly  shows that the expression ‘levy’\t has
\n\t      not  been\t used  in the Act or  the  Rules  as
\n\t      meaning actual collection”.\n<\/p><\/blockquote>\n
We  are, therefore, unable to accept the view  that,  merely
\nbecause the “account current”, kept under the third  proviso
\n(erroneously  mentioned\t as second proviso by  the  Division
\nBench)\tto  Rule 9, indicated that an accounting  bad  taken
\nplace,\tthere  was necessarily a legally valid\tor  complete
\nlevy.\tThe  making  of debit entries was  only\t a  mode  of
\ncollection of the tax.\tEven if payment or actual collection
\nof  tax could be spoken of as a de facto “levy” it was\tonly
\nprovisional  and  not final.  It could only  be\t clothed  or
\ninvested with validity after carrying out the obligation  to
\nmake  an  assessment  to justify it.  Moreover,\t it  is\t the
\nprocess\t of  assessment that really determines\twhether\t the
\nlevy is short or complete.  It is not a factual or  presumed
\nlevy which could, in a disputed case, prove an “assessment”.
\nThis has to be done by proof of the actual steps taken which
\nconstitute “assessment”.\n<\/p>\n
Undoubtedly, a mechanical adjustment and ostensible  settle-
\nment of accounts, by making debit entries, was gone  through
\nin  the\t case before us.  But, we could not equate  such  an
\nadjustment  with  an assessment,  a  quasi-judicial  process
\nwhich involves due application of mind to the facts as\twell
\nas  to the requirements of law, unless we were bound by\t law
\nto give an unusual interpretation to the term  “assessment”.
\nHere,  we do not find any such definition of  assessment  or
\nany  compelling reason to bold that what could at most be  a
\nmechanical  provisional\t collection, which  would  become  a
\n“levy”\tin  the eve of law only after an  “assessment”,\t was
\nitself a levy or an assessment.\n<\/p>\n
Rules 10 and 10A, placed side by side, do raise difficulties
\nof interpretation.  Rule 10 seems to be so widely worded  as
\nto
\n(1)  A.I.R. 1971 S.C. 2039  2045.\n<\/p>\n
837<\/span><\/p>\n
cover any “inadvertence, error, cullusion or misconstruction
\non the part of an officer”, as well as any “misstatement  as
\nto  the quantity, description or value of such goods on\t the
\npart of the owner” as causes of short levy.  Rule 10-A would
\nappear to cover any “deficiency in duty if the duty has\t for
\nany  reason  been  short levied”, except that  it  would  be
\noutside\t the  purview  of  Rule 10A  if\t its  collection  is
\nexpressly provided for by any Rule.  Both the rules, as they
\nstood  at the relevant time, dealt with collection  and\t not
\nwith  assessment.   They  have to be harmonised,  In  N.  B.
\nSanjana’s  case\t (Supra),  this\t Court\tharmonised  them  by
\nindicating that Rule 10A, which was residuary in  character,
\nwould  be  inapplicable if a case fell\twithin\ta  specified
\ncategory of cases mentioned in Rule 10.\n<\/p>\n
It  was\t pointed  out in Sanjana’s case\t (Supra).  that\t the
\nreason\tfor the addition of the new Rule 10A was a  decision
\nof  the Nagpur High Court in Chhotabhai Jethabhai  Patel  v.
\nUnion  of India<\/a>(1), so that a fresh demand may be made on  a
\nbasis altered by law.  The Excise authorities had then\tmade
\na fresh demand, under the provisions of Rule 10-A, after the
\naddition of that Rule, the validity of which challenged\t but
\nupheld\tby a Full. Bench of the High Court of Nagpur.\tThis
\nCourt,\tin  Chhotabhai Jethabhai Patel & Co.,  v.  Union  of
\nIndia<\/a> ( 2 ) also rejected the assessee’s claim that Rule 10-
\nA was inapplicable after pointing out that the new rule\t had
\nbeen  specifically  designed”  for the\tenforcement  of\t the
\ndemand\tlike  the one arising in the  circumstances  of\t the
\ncase”.\n<\/p>\n
We think that Rule 10 should be confined to cases where\t the
\ndemand\tis being made for a short levy caused wholly by\t one
\nof the reasons given in that rule so that an assessment\t has
\nto  be\treopened.  The findings given by the  Calcutta\tHigh
\nCourt  do  not show that, in the case before us,  there\t was
\neither\ta short levy or that one of the grounds for a  short
\nlevy  given  in Rule 10 really and definitely  existed.\t  No
\ndoubt the Division Bench gave a reason for the way in  which
\nthe  claims became time barred, in the following words:\n<\/p>\n
\t       “It  is\tquite  possible,   that\t the  Excise
\n\t      authorities,   in\t an  attempt   tohelp\tthe,
\n\t      appellants,  by facilitating the movements  of
\n\t      goods, inadvertently allowed the claims to  be
\n\t      barred\t by  limitation.  That, however,  is
\n\t      not a matter which can affect the question  of
\n\t      limitation.The  bar  of  limitation  has\tbeen
\n\t      imposed by Statute.  The morality of the\tcase
\n\t      or  the  conduct of the parties  is  therefore
\n\t      irrelevant  unless the law provides  that\t the
\n\t      court on that ground can afford relief’
\n(1) A.I.R, 1952 Nag. 139,
\n(2) [1962] Supp. 2 S.C.R. 1
\n838<\/span>
\nThis finding was presumably given to show that the  impugned
\nnotice fell within the purview of Rule 10 because the demand
\nwas  due  to a short-levy caused by  “inadvertence”  of\t the
\nofficer\t concerned.   It will be noticed that  the  Division
\nBench  did  not go beyond finding a  “possibility”  of\tsuch
\ninadvertence.  This is not a finding that it was  definitely
\ndu.-,  to  it.\tNo finding which could clearly\trelate\tthe,
\ncase to any cause for short levy found in Rule 10 was given.\n<\/p><\/blockquote>\n
Moreover,  we  find that there was no case taken up  by\t the
\nCompany in its petition before the High Court that any short
\nlevy resulted from an inadvertence. of the officer concerned
\nin the process of assessment.  The case set up was that of a
\nlevy  after a completed assessment, in accordance with\tlaw,
\nwhich could not, according to the Company, be reopened.\t If,
\ntherefore,  as we find from the conclusions recorded by\t the
\nHigh  Court itself what took place was not an  “asseessment”
\nat  all\t in  the eye of law, which  could  not\tbe  reopened
\noutside\t the provisions of Rule 10, we think that  the\tcase
\nwill fall beyond Rule 10 as it stood at the relevant time.
\nThe notice set out above does not purpoe, to be issued under
\nany particular rule probably because the Collector,. in\t the
\ncircumstances  of the case, was not certain about  the\trule
\nunder which the notice could fall.  But, as was pointed\t out
\nby  this  Court in Sanjana’s case (Supra),  the\t failure  to
\nspecify the provision under which a notice is sent would not
\ninvalidate it if the power to issue such a notice was there.
\nThe notice alleges that it is a case of “incomplete  assess-
\nment”.\t  The\tallegations  contained\tin  it\t have\tbeen
\ncharacterised  by the learned counsel for the Company  as  a
\nchange\tof  front  intended to cover up the  neglet  of\t the
\nCollector in failing to comply with the correct procedure of
\nmaking either an assessment before delievery contemplated by
\nRule 52 or a provisional assessment under Rule 10-B.  We are
\nunable\tto hold, either upon the findings given by the\tHigh
\nCourt or upon facts transpiring from the affidavits filed by
\nthe  parties  that  the notice was a  mere  cloak  for\tsome
\nomission or error or inadvertence of the Collector in making
\na levy or an assessment.\n<\/p>\n
 We  may point out that Rule 10 itself has been amended\t and
\nmade  more  reasonable\tin 1969 so as to  require  a  quasi-
\njudicial procedure by serving a show cause notice “within  3
\nmonths from the date on which the duty or charge was paid or
\nadjusted  in  the owner’s account current,  if\tany”.\tThis
\namendment,  made  on 11-10-1969, indicates that\t the  quasi-
\njudicial   procedure.\tfor   a\t finding   on\tan   alleged
\ninadvertence,  error,  collusion, or misconstruction  by  an
\nofficer, or misstatement by the assessee, as the cause of an
\nalleged short levy resulting from an assessment, can now  be
\nembarked upon and not necessarily completed
\n839<\/span>
\nwithin\tthe prescribed period.\tWe are,\t however,  concerned
\nwith  the  procedure before this amendment took\t place.\t  At
\nthat  time, it was certainly not clear whether a case  would
\nfall  under Rule 10 even before the short levy or its  cause
\nwas  established.   Furthermore, in the\t present  case,\t the
\nreason for an alleged short levy could be a change of  basis
\nof  proposed  assessment  under\t instructions  from   higher
\nauthorities mentioned above.  Even that change of basis\t was
\nheld  by  the High Court to be erroneous.   Until  the\tHigh
\nCourt  indicated the correct basis there was an\t uncertainty
\nabout it.  Such a ground for an alleged short levy would  be
\nanalogous  to the reason for the introduction of  Rule\t10-A
\nitself\t_  which,  as pointed out in N.\t B.  Sanjana’s\tcase
\n(Supra), was ‘a change in the law.  One could go back  still
\nfurther and come to the conclusion that the real reason ‘,or
\nthe  alleged  short  levy was a failure of  the\t Company  to
\nsupply\tthe fuller information it used to supply  previously
\nand  not just a misstatement.  If the case does not  clearly
\ncome  within  the classes specified in Rule  10,  this\trule
\nshould not be invoked because, as was rightly contended\t for
\nthe appellant, a too wide construction put on Rule 10  would
\nmake  Rule  10A\t useless.  The two rules  have\tto  be\tread
\ntogether.\n<\/p>\n
It is true that Rule 10-A seems to deal only with collection
\nand not with the ascertainment of any deficiency in duty  or
\nits cause by a quasi-judicial procedure.  If, however, it is
\nread in conjunction with Section 4 of the Act, we think that
\na quasi-judicial proceeding, in the circumstances of such  a
\ncase,  could take place under an implied power.\t It is\twell
\nestablished  rule  of  construction  that  a  power  to\t  do
\nsomething essential for the proper and effectual performance
\nof  the work which the statute has in contemplation  may  be
\nimplied [See Craies on Statute Law (Fifth Edition) P. 105]
\nThe  question whether there was or was not an implied  power
\nto  hold an enquiry in the circumstances of the case  before
\nus,  in view of the Provisions of Section 4 of the Act\tread
\nwith  Rule  10-A  of  the, Central  Excise  Rule,   was\t not
\nexamined  by the Calcutta High Court because it\t erroneously
\nshut  out consideration of the meaning and applicability  of
\nRule 10A.  The High Court’s view was based on an application
\nof the rule of construction that where a mode of  performing
\na duty is laid down by law it must be performed in that mode
\nor not at all.\tThis rule flows from the maxim :  “Expressio
\nunius  act  exclusio alterius.” But, as we  pointed  out  by
\nWills, J., in Colquohoun v. Brooks(1) this maxim “is often a
\nvaluable servant, but a dangerous master …. “. The rule is
\nsubservient   to  the  basic  principle\t that  Courts\tmust
\nendeavour to ascertain the legislative intent and
\n(1)  (1888) 2 1 Q. B. D. 52,62.\n<\/p>\n
840<\/span><\/p>\n
purpose,  and  then  adopt  a  rule  of\t construction  which
\neffectuates rather than one that may defeat these.  Moreover
\nthe  rule of prohibition by necessary implication  could  be
\napplied\t only where a specified procedure is laid  down\t for
\nthe  performance  of.  a duty.\tAlthough Rule  52  makes  an
\nassessment   obligatory\t before\t goods\tare  removed  by   a
\nmanufacturer, yet, neither that rule nor any other rule,  as
\nalready\t  indicated  above,  has  specified   the   detailed
\nprocedure  for\tan  assessment.\t There is  no  express\tpro-
\nhibition anywhere against an assessment at any other time in
\nthe circumstances of a case like the one before us where  no
\n”  assessment”,\t as it is understood in law, took  place  at
\nall.   On the other hand, Rule 10A indicates that there\t are
\nresiduary powers of making a demand in special circumstances
\nnot foreseen by the framers of the Act or the rules.  If the
\nassessee   disputes  the  correctness  of  the\t demand\t  an
\nassessment becomes necessary to protect the interests of the
\nassessee.  A case like the one before us falls more properly
\nwithin\tthe residuary class of unforeseen cases.   We  think
\nthat, from the provisions of Section 4 of the Act read\twith
\nRule  10A,  an\timplied power to carry out  or\tcomplete  an
\nassessment, not specifically provided for by the rules,\t can
\nbe  inferred.\tNo writs of prohibition or  mandamus  “,ere,
\ntherefore, called for in the circumstances of the case.
\nConsequently, we allow this appeal and set aside the  orders
\nof  the Calcutta High Court.  The Collector may now  proceed
\nto  complete  the assessment.  In the circumstances  of\t the
\ncase, the parties will bear their own costs throughout.
\nAppeal allowed
\nS.C.\n<\/p>\n
841<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Assistant Collector Of Central … vs National Tobacco Co. Of India Ltd on 9 August, 1972 Equivalent citations: 1972 AIR 2563, 1973 SCR (1) 822 Author: M H Beg Bench: Beg, M. Hameedullah PETITIONER: ASSISTANT COLLECTOR OF CENTRAL EXCISE,CALCUTTA DIVISION Vs. RESPONDENT: NATIONAL TOBACCO CO. OF INDIA LTD. DATE OF JUDGMENT09\/08\/1972 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-5602","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAssistant Collector Of Central ... vs National Tobacco Co. 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