Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5297 OF 2008
M/s. The Bombay Dyeing & Mfg. Co. Ltd. ..…Appellant(s)
Versus
The Commissioner of Central Excise ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal is directed against the judgment and order
dated 13.9.2007 passed by the High Court of Judicature at
Bombay in Central Excise Appeal No. 237 of 2006. Briefly
stated, the appellant is engaged in manufacture of cotton and
manmade fabrics. According to the appellant, the fabric
manufactured by the appellant was not amenable to excise duty
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2019.12.09
16:37:32 IST
Reason:
since it was for captive consumption and not to be removed for
the purposes of sale or for consumption as envisaged under Rule
2
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
1
Co. Ltd. & Ors. vs. Union of India & Ors. , 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:
“(a) 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 of fabrics:
(b) Issue 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
(Annexure H):
(c) Issue 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
1 1981 (8) ELT 887 (Del.)
3
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 and notices.
(d) Issue 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 of fabrics.
(e) Issue 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 13.5.1981 (colly.);
(f) In 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 of
fabrics.
(g) In 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 sizing thereof.
(h) To pass such other and further orders as may be
deemed just and proper in the facts and circumstances of
this case; and
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(i) Award costs of the writ petition in favour of the
petitioner. ”
During the pendency of the aforementioned writ petitions,
2.
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 reproduced below:
“(a) grant order of stay permitting the petitioners forthwith
to further process and use cellulose and noncellulosic
spun yarn, manmade filament yarn and cotton yarn in its
composite mill in the manufacture of manmade 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 B13 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 Writ
Petition):
(b) grant exparte ad interim stay in terms of prayer (a)
hereinabove : and
(c) pass such other and further orders as may be deemed
just and proper.”
5
3. 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 B13
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:
“…there 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
th
or before 14 August, 1985, the second installment shall be
th
made on or before 14 November, 1985 and the third and
6
the last installment to complete the 50% will be paid on or
th
before 20 February, 1986.
There 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 this order.
There will be no duty payable on the sized yarn even for
future till disposal of the writ petition.
If any payments have been made through disputed, the
same would be adjusted in accordance with what is
provided in the order passed by us today……”
Pursuant to the modified interim relief, the appellant
4.
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:
“Counsel 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
th
Mills Ltd. v. Union of India, dated 28 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 showcause notices.
Accordingly, we 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.”
5. 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
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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:
“OFFICE OF THE ASSTT. COLLECTOR OF CENTRAL
ND
EXCISE: DIVISION FI 2 FLOOR, MADHU INDUS ESTATE:
P.B. MARG, WORLI, BOMBAY13
th
F.No.FI/FI/V(18)3/81/1735 Bombay, the 26 March, 1993
M/s. Bombay Dyeing & Manufacturing Co. Ltd.,
(spring Mills),
G.D. Ambedkar Road,
Bombay14.
Gentlemen,
Sub Delhi High Court CW.P. No.1235/81
M/s. Bombay Dyeing & Mfg. Co. Ltd.
Versus
Union of India and OTHERS
Please refer to various correspondences exchanged on
the above said state subject.
I have 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,
New Delhi.
The aforesaid 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 action please).
Before complying the aforesaid orders of the Supreme
Court of India in case of M/s. Rohit Mills Ltd., on which
8
case the Delhi High Court has disposed of the instant writ
petition, this office would like to bring to your notice as
under:
‘As regards 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) 330).
The 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 as under:
“Be that 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
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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 be encashed…………..”
With the above observation, we dismiss the writ
petition with no order as to cost.”
In view 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 High Court.”
However, complying 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 as possible.
Your early reply is awaited in this matter.
Yours faithfully,
Sd/ Illegible
(C.K. NIRBHAVANE)
ASSISTANT COLLECTOR
CENTRAL EXCISE DN. FI
BOMBAYI”
6. 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
10
28.4.1988 in Rohit Mills Ltd. & Ors. vs. Union of India &
2
The said communication reads thus:
Ors.
th
“OUR RE. NO. SM/E1 11 May, 1993
The Assistant Collector of Central Excise,
Division F1, IInd Floor,
Madhu Industrial Estate,
P.B. Marg, Worli,
Bombay400013.
Dear Sir,
Your Ref. F.No.IV/CLVI/3084/FI/93/2295
nd
Dated 2 April, 1993.
Sub: Delhi High Court
Writ Petition No.1235/1981
Bombay Dyeing & Mfg. Co. Ltd.
(Spring Mill Unit) Vs. UOI & Ors.
1. 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.
2. 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.
3. 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
2 1988 (18) ECR 17 SC
11
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.
4. 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.
5. 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.
12
6. 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.
7. 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
th
hearing already fixed for 11 May, 1993 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 Court.
Yours faithfully,
Sd/ Illegible
[K.R. NAYAK]
MANAGER”
7. The Assistant Collector of Excise vide orderinoriginal
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 nonissue 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.
13
8. 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 RT12 returns for the period of May,
1981 to May, 1985 for the items 18A, 18III 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 the Assistant Collector of
Central Excise 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 RT12 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
14
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.
9. 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
orderinoriginal 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
15
evinced from the endorsements on monthly RT12 returns in that
behalf.
The appellant carried the matter in appeal before the
10.
Commissioner of Central Excise (Appeals), who in turn, rejected
the appeal vide orderinappeal 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.
11. 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 35G 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
16
titled as The Jam Shri Ranjitsinghji Spg. & Wvg. Mills Co.
3
.
Ltd. & Anr. vs. Union of India & Ors.
12. 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.
13. 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 B13 bonds have been executed by the assessee and
clear endorsement is made on the monthly RT12 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.
3 2007 (109) Bom LR 2167
17
14. We may now advert to the issues raised by the appellant in
the present appeal. According to the appellant, primarily two
questions arise for consideration, which are as follows:
“1) Whether the demand for Central Excise for the period
25.05.1981 to 14.05.1985, as raised by the department, is
barred by limitation?
This question in turn is dependent upon the issue whether
the assessment in this case could be said to be provisional
assessment.
2) Could the respondent authorities have ignored the
binding directions of the Hon’ble High Court of Delhi vide its
Order dated 12.03.1993 to hold that no Show Cause Notice
(SCN) was required in the present case as the assessments
in question were provisional?”
It is urged that the purport of the order dated 10/12.3.1993
15.
passed by the High Court of Delhi, while disposing of the writ
petitions filed by the appellant clearly obliged the Department to
issue a Show Cause Notice under Section 11A of the Act and to
proceed against the appellant only in the manner permissible
under the said provision in light of the dictum of this Court in
It is urged that the dictum in
Rohit Mills Ltd. (supra). Rohit
Mills Ltd. (supra) formed part of the subject order of the High
Court of Delhi and for which reason, it was not open to the
Department to take a contrary stand. The approach of the
authorities in not complying with the said obligation cannot
18
stand the test of judicial scrutiny. On the other hand, if the
authorities were to follow the direction given by the High Court of
Delhi, the demand for central excise duty for the period starting
from 25.5.1981 to 13/14.5.1985 would be clearly barred by
limitation. It is then urged that had the authorities adopted the
route of provisional assessment, they were obliged to expressly
state that position by passing an order. In the present case, no
such order has been passed by the authorities. To buttress the
argument that it is incumbent upon the authorities to pass
formal specific order directing provisional assessment, reliance is
placed on the circular issued by the Ministry of Finance
(Department of Revenue) bearing number 26/1989 dated
24.4.1989. It is urged that the fact that the appellant had
executed B13 bonds or the monthly RT12 returns purportedly
treated as provisional assessment, can never be held against the
appellant especially in light of the observation of the High Court
of Delhi that a formal notice be issued to the appellant, which
was the basis for disposing of the writ petitions. In support of
the above arguments, the appellant would rely on decisions of
this Court in Rohit Mills Ltd. (supra) ; The Bhopal Sugar
19
4
Industries Ltd. vs. The Income Tax Officer, Bhopal ; R.B.F.
Rig Corporation, Mumbai vs. Commissioner of Customs
5
(Imports), Mumbai ; Metal Forgings & Anr. vs. Union of India
6
;
& Ors. J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs.
7
Collector of Central Excise ; Commissioner of Central
Excise, Calcutta vs. Hindustan National Glass & Industries
8
Ltd. ; Kalabharati Advertising vs. Hemant Vimalnath
9
;
Narichania & Ors. Jagmittar Sain Bhagat & Ors. vs.
10
Director, Health Services, Haryana & Ors. ; and Coastal
Gases and Chemicals Pvt. Ltd. vs. Assistant Collector of
11
Central Excise, Visakhapatnam & Ors. .
16. The respondent, on the other hand, supported the reasons
recorded by the authorities/Tribunal and would contend that
being a case of provisional assessment, the question of issuing a
4 1961 (1) SCR 474
5 (2011) 3 SCC 573
6 (2003) 2 SCC 36
7 (1998) 3 SCC 540
8 (2005) 3 SCC 489
9 (2010) 9 SCC 437
10 (2013) 10 SCC 136
11 (1997) 7 SCC 223
20
Show Cause Notice to the appellant under Section 11A of the Act
does not arise. Whereas, the authorities acted as per the
mandate of law and proceeded to pass final assessment orders
after the disposal of writ petitions by the High Court of Delhi,
and before passing such orders, opportunity of hearing was given
to the appellant. According to the respondent, the order dated
10/12.3.1993 of the High Court of Delhi did not create any
impediment for the authorities to proceed against the appellant
in accordance with law. At best, the tenor of the order would
suggest that if a Show Cause Notice is required to be issued and
has not been so issued, authorities were free to issue such a
notice and take decision thereon, after giving opportunity of
hearing to the assessee. No more and no less. The High Court of
Delhi could not have issued any other direction against the
respondent, which would be in the nature of prohibiting the
statutory functionary from discharging its statutory functions
and obligations nor to absolve the appellant of its statutory
obligation to pay excise duty, which otherwise was payable by the
appellant but for filing of the writ petitions. Admittedly, the
interim protection given to the appellant was conditional and the
21
appellant, acting upon the same, had submitted B13 bonds,
which presupposes that it was a case of provisional assessment
and could be proceeded further as per law, after the disposal of
the writ petitions. In that, it was not a case referable to Section
11A of the Act. The respondent is placing heavy reliance on the
decision of the Division Bench of the High Court of Judicature at
Bombay in the case of The Jam Shri Ranjitsinghji (supra) ,
which has been upheld by this Court by dismissing Civil Appeal
No. 1551/2008 on 7.3.2008. It is urged that the facts of the
relied upon case and the present case are almost similar, if not
identical. According to the respondent, the appeal is devoid of
merits and the same be dismissed.
17. We have heard Mr. Kavin Gulati, learned senior counsel for
the appellant and Mr. A.K. Sanghi, learned senior counsel for the
respondent.
18. After cogitating over the rival submissions, the core issue
that requires to be immediately addressed is about the purport of
the order passed by the High Court of Delhi dated 10/12.3.1993,
while disposing of the writ petitions filed by the appellant. The
said order will have to be understood in the context of the stand
22
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
12
India & Ors. 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 excise duty.
12 1987 (Supp) SCC 350
23
19. Additionally, it may be apposite to underscore the purport
of the interim conditional stay granted by the High Court of Delhi
whilst entertaining the writ petitions filed by the appellant.
Initially, vide order dated 25.5.1981, interim relief was granted in
terms of the Prayer clause (a) of Civil Miscellaneous Petition No.
1699/1981, reproduced hitherto. By this Prayer clause, the
appellant had expressed its willingness to file undertaking/bond
in Form B13 referable to Rule 9B supported by bank guarantee
for an amount equivalent to specified differential duty in respect
of the yarn in question. The said interim relief was then modified
on 14.5.1985. The fact remains that the appellant voluntarily
furnished requisite bonds in Form B13 referable to Rule 9B
supported by bank guarantee for equivalent amount of the
differential duty. It is 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 RT12
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
24
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
shortlevied or shortpaid. 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 B13 and cannot resile from the process to which it had
submitted itself without any demur, namely under Rule 9B of the
Rules.
20. 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 . On a fair
Rohit Mills Ltd. (supra)
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
25
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.
21. Section 11A of the Act as applicable at the relevant time,
would apply to cases of recovery of duties not levied or not paid
or shortlevied or shortpaid etc. The Section, as applicable at
the relevant time, read thus:
“11A. Recovery of duties not levied or not paid or short
levied or shortpaid or erroneously refunded.
(1) When any duty of excise has not been levied or
paid or has been shortlevied or shortpaid or erroneously
refunded, whether or not such nonlevy or nonpayment,
shortlevy or short payment or erroneous refund, as the
case may be, was on the basis of any approval, acceptance
or assessment relating to the rate of duty on or valuation of
excisable goods under any other provisions of this Act or the
rules made thereunder, a Central Excise Officer may,
within one year from the relevant date, serve notice on the
person chargeable with the duty which has not been levied
or paid or which has been shortlevied or shortpaid or to
whom the refund has erroneously been made, requiring him
to show cause why he should not pay the amount specified
in the notice:
Provided that where any duty of excise has not
been levied or paid or has been shortlevied or shortpaid or
erroneously refunded by reason of fraud, collusion or any
wilful misstatement or suppression of facts, or
26
contravention of any of the provisions of this Act or of the
rules made thereunder with intent to evade payment of
duty, by such person or his agent, the provisions of this
subsection shall have effect, as if for the words one year,
the words “five years” were substituted:
Explanation .—Where the service of the notice is stayed by
an order of a Court, the period of such stay shall be
excluded in computing the aforesaid period of one year or
five years, as the case may be.
(1A) When any duty of excise has not been levied or
paid or has been shortlevied or short paid or erroneously
refunded, by reason of fraud, collusion or any wilful
misstatement or suppression of facts, or contravention of
any of the provisions of this Act or the rules made
thereunder with intent to evade payment of duty, by such
person or his agent, to whom a notice is served under the
proviso to subsection (1) by the Central Excise Officer, may
pay duty in full or in part as may be accepted by him, and
the interest payable thereon under section 11AB and
penalty equal to twentyfive per cent. of the duty specified in
the notice or the duty so accepted by such person within
thirty days of the receipt of the notice.
(2) Central Excise Officer shall, after considering the
representation, if any, made by the person on whom notice
is served under subsection (1), determine the amount of
duty of excise due from such person (not being in excess of
the amount specified in the notice) and thereupon such
person shall pay the amount so determined:
Provided that if such person has paid the duty in
full together with, interest and penalty under subsection
(1A), the proceedings in respect of such person and other
persons to whom notice is served under subsection (1)
shall, without prejudice to the provisions of sections 9, 9A
and 9AA, be deemed to be conclusive as to the matters
stated therein:
Provided further that, if such person has paid
duty in part, interest and penalty under subsection (1A),
the Central Excise Officer, shall determine the amount of
duty or interest not being in excess of the amount partly
due from such person.
(2A) Where any notice has been served on a person
under subsection (1), the Central Excise Officer,—
27
(a) in case any duty of excise has not been
levied or paid or has been shortlevied or shortpaid or
erroneously refunded, by reason of fraud, collusion or any
wilful misstatement or suppression of facts, or
contravention of any of the provisions of this Act or of the
rules made thereunder with intent to evade payment of
duty, where it is possible to do so, shall determine the
amount of such duty, within a period of one year; and
(b) in any other case, where it is possible to do so,
shall determine the amount of duty of excise which has not
been levied or paid or has been shortlevied or shortpaid or
erroneously refunded, within a period of six months, from
the date of service of the notice on the person under sub
section (1).
(2B) Where any duty or excise has not been levied or
paid or has been shortlevied or shortpaid or erroneously
refunded, the person, chargeable with the duty, may pay
the amount of duty on the basis of his own ascertainment of
such duty or on the basis of duty ascertained by a Central
Excise Officer before service of notice on him under sub
section (1) in respect of the duty, and inform the Central
Excise Officer of such payment in writing, who, on receipt of
such information shall not serve any notice under sub
section (1) in respect of the duty so paid:
Provided that the Central Excise Officer may
determine the amount of short payment of duty, if any,
which in his opinion has not been paid by such person and
then, the Central Excise Officer shall proceed to recover
such amount in the manner specified in this section, and
the period of “one year” referred to in sub section (1) shall
be counted from the date of receipt of such information of
payment.
Explanation 1. —Nothing contained in this sub
section shall apply in a case where the duty was not levied
or was not paid or was shortlevied or was shortpaid or was
erroneously refunded by reason of fraud, collusion or any
wilful misstatement or suppression of facts, or
contravention of any of the provisions of this Act or of the
rules made thereunder with intent to evade payment of
duty.
28
| Explanation 2. —For the removal of doubts, it is<br>hereby declared that the interest under section 11AB shall<br>be payable on the amount paid by the person under this<br>subsection and also on the amount of shortpayment of<br>duty, if any, as may be determined by the Central Excise<br>Officer, but for this subsection. | |||
|---|---|---|---|
| Explanation 3 .—For the removal of doubts, it is<br>hereby declared that no penalty under any of the provisions<br>of this Act or the rules made thereunder shall be imposed in<br>respect of payment of duty under this subsection and<br>interest thereon. | |||
| (2C) The provisions of subsection (2B) shall not apply<br>to any case where the duty had become payable or ought to<br>have been paid before the date on which the Finance Bill,<br>2001 receives the assent of the President. | |||
| (3) For the purposes of this section— | |||
| (i) “refund” includes rebate of duty of excise on excisable<br>goods exported out of India or on excisable materials used<br>in the manufacture of goods which are exported out of<br>India; | |||
| (ii) “relevant date” means,— | |||
| (a) in the case of excisable goods on which duty of<br>excise has not been levied or paid or has been short<br>levied or shortpaid—<br>(A) where under the rules made under this Act a<br>periodical return, showing particulars of the duty<br>paid on the excisable goods removed during the<br>period to which the said return relates, is to be<br>filed by a manufacturer or a producer or a licensee<br>of a warehouse, as the case may be, the date on<br>which such return is so filed;<br>(B) where no periodical return as aforesaid is<br>filed, the last date on which such return is to be<br>filed under the said rules;<br>(C) in any other case, the date on which the<br>duty is to be paid under this Act or the rules made<br>thereunder; | |||
| (a) in the case of excisable goods on which duty of<br>excise has not been levied or paid or has been short<br>levied or shortpaid— | |||
| (A) where under the rules made under this Act a<br>periodical return, showing particulars of the duty<br>paid on the excisable goods removed during the<br>period to which the said return relates, is to be<br>filed by a manufacturer or a producer or a licensee<br>of a warehouse, as the case may be, the date on<br>which such return is so filed; | |||
| (B) where no periodical return as aforesaid is<br>filed, the last date on which such return is to be<br>filed under the said rules; | |||
| (C) in any other case, the date on which the<br>duty is to be paid under this Act or the rules made<br>thereunder; |
29
(b) in a case where duty of excise is provisionally
assessed under this Act or the rules made thereunder,
the date of adjustment of duty after the final assessment
thereof;
(c) in the case of excisable goods on which duty of
excise has been erroneously refunded, the date of such
refund.”
22. The case at hand, however, would come within the
dispensation predicated by Rule 9B of the Rules, which deals
with provisional assessment to duty. The same reads thus:
“Rule 9B. Provisional assessment to duty. (1)
Notwithstanding anything contained in these rules,
(a) where the proper officer is satisfied that an assessee is
unable to produce any document or furnish any information
necessary for the assessment of duty on any excisable
goods; or
(b) where the proper officer deems it necessary to subject
the excisable goods to any chemical or any other test for the
purpose of assessment of duty thereon; or
(c) where an assessee has produced all the necessary
documents and furnished full information for the
assessment of duty, but the proper officer deems it
necessary to make further inquiry (including the inquiry to
satisfy himself about the due observance of the conditions
imposed in respect of the goods after their removal) for
assessing the duty;
the proper officer may, either on a written request made by
the assessee or on his own accord, direct that the duty
leviable on such goods shall, pending the production of
such documents or furnishing of such information or
completion of such test or enquiry, be assessed
provisionally at such rate or such value (which may not
necessarily be the rate or price declared by the assessee) as
may be indicated by him, if such assessee executes a bond
in the proper form with such surety or sufficient security in
30
such amount, or under such conditions as the proper officer
deems fit, binding himself for payment of the difference
between the amount of duty as provisionally assessed and
as finally assessed.
(2) xxx xxx xxx
(3) The Collector may permit the assessee to enter into a
general bond in the proper form with such surety or
sufficient security in such amount or under such conditions
as the Collector approves for assessment of any goods
provisionally from time to time:
Provided that, in the event of death, insolvency or
insufficiency of the surety or where the amount of the bond
is inadequate, the Collector may in his discretion demand a
fresh bond and may, if the security furnished for a bond is
not adequate, demand additional security.
(4) The goods provisionally assessed under subrule (1) may
be cleared for home consumption or export in the same
manner as the goods which are not so assessed.
(5) When the duty leviable on the goods is assessed finally in
accordance with the provisions of these rules, the duty
provisionally assessed shall be adjusted against the duty
finally assessed, and if the duty provisionally assessed falls
short of, or is in excess of the duty finally assessed, the
assessee, shall pay the deficiency or be entitled to a refund
as the case may be.”
23. Indisputably, the appellant voluntarily executed bonds in
Form B13 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 RT12 returns filed by the assessee, indicating that it
was a case of provisional assessment. Having submitted to that
31
process, it is not open to the appellant to urge that an express
order of provisional assessment has not been passed by the
authorities.
24. 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 B13 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 writ petitions.
A priori, the authorities have not violated any stipulation or
25.
direction contained in the order dated 10/12.3.1993 passed by
32
the High Court of Delhi and for having proceeded in accordance
with law for the period between 25.5.1981 to 13/14.5.1985.
26. Reverting to the decision of the Division Bench of the High
Court of Judicature at Bombay in The Jam Shri Ranjitsinghji
(supra) , similar argument was considered and the High Court,
after detailed analysis, concluded that in a case such as the
present one, it is not open to the assessee to insist for a notice
under Section 11A of the Act, which has no bearing in cases of
provisional assessment. The High Court of Judicature at
Bombay, while dealing with similar arguments, observed thus:
“33. The question, therefore, to be considered is, firstly,
whether circumstances for making provisional assessment
existed in the present case and secondly, whether a
provisional assessment order was made before clearance of
the yarn for captive consumption?
34. With reference to the first contention, the
argument of the appellant is that none of the circumstances
for making provisional assessment set out in Rule 9B
existed in the present case. Moreover, classification list and
the price list were already approved, and therefore, there
was no scope for making provisional assessment. There is
no merit in this contention because under Rule 9B(1)(c) of
the 1944 Rules, even after the assessee has produced all the
necessary documents and furnished full information for the
assessment of duty it was open to the assessing officer to
make provisional assessment either on a written request
made by the assessee or if the proper officer deemed it
necessary to make further inquiry. In the present case,
admittedly there was a dispute pending before the Delhi
High Court regarding the excisability of the yarn cleared for
33
captive consumption. Pending final decision of the Delhi
High Court, it was open to the appellant to seek and to the
proper officer to allow clearance of yarn for captive
consumption on provisional assessment basis. In fact, in
the B13 Bond it is recorded that the appellant had sought
provisional assessment. Even if the contention of the
appellant that the B13 Bond was executed at the instance
of the excise authorities, is accepted, in view of the fact that
a dispute was pending before the Delhi High Court, it was
open to the proper officer to insist on clearing the yarn for
captive consumption on provisional assessment basis.
35. The next question to be considered is, whether a
provisional assessment order was in fact made before
clearance of yarn for captive consumption on provisional
assessment basis? It is not in dispute that during the period
from May, 1981 to May, 1984 the appellant had cleared the
yarn for captive consumption by executing B13 Bond
which is applicable to provisionally assessed goods. It is
pertinent to note that the Delhi High Court by its interim
order had not directed the appellant to execute B13 Bond.
Apart from B13 Bond, there are various types of Bonds
specified in Appendix I to the 1944 Rules, which could be
executed by the appellant. The fact that the appellant
claims to have executed the B13 Bond at the instance of
the revenue clearly shows that as per the directions given by
the proper officer, the clearances have been effected on
provisional assessment basis by executing B13 Bond.
36. It is not the case of the appellant that B13 bond
was executed inadvertently or by mistake. Therefore, having
consciously cleared the yarn for captive consumption on
provisional assessment basis by executing B13 Bond as
directed by the excise authorities, it is not open to the
appellant to contend that there was no order/directions to
clear the yarn on provisional assessment basis.”
The decisions of this Court, to which our attention has been
27.
invited by the learned counsel for the appellant, have been
considered by the High Court of Judicature at Bombay. The
High Court rightly observed that the said decisions have no
34
application to case of provisional assessment followed by a final
assessment. While dealing with those decisions, the Court
observed thus:
“39. At the outset, it may be noted that the
observations made by the Apex Court in all the above cases
regarding the issuance of notice under Section 11A of the
1944 Act was in the context of the excise duty that became
payable on account of the Apex Court upholding the validity
of the amendment to Rule 9 and 49 of the 1944 Rules with
retrospective effect from 28.2.1944. Obviously, the said
observations were meant to apply to cases where the final
assessments were already made and not in respect of cases
where the assessments were provisional, because duty
liability is determined only at the time of final assessment.
In other words, what is held in all the above cases is that, in
spite of the retrospective amendment to Rule 9 and 49 is
upheld, where the assessments are already finalised the
duty under the amended Rule 9 and 49 can be recovered
only by issuing notice under Section 11A of the 1944 Act.
40. This is evident from the fact that in the case of J.K.
Cotton Mills (supra) in respect of the clearances effected
during the pendency of the dispute, there was no direction
to clear the goods on provisional assessment basis. In that
case, neither the goods were cleared by executing B13
Bond nor there were any endorsements made on the RT12
returns to the effect that the assessments were provisional.
Moreover, in the show cause notice issued by the revenue it
was not even averred that the goods were cleared on
provisional assessment basis. In fact, Assistant Collector in
that case treated the assessments as provisional solely on
the premise that the matter was subjudice and the basic
argument of the revenue was that the stay granted by the
Delhi High Court virtually amounted to stay of service of
notice under Section 11A of the Excise Act. In the facts of
that case, where the assessments had attained finality and
where there was no evidence whatsoever to establish that
the clearances were effected on provisional assessment
basis, the Apex Court held that in the absence of an express
order of provisional assessment made under Rule 9B, the
assessments cannot be treated as provisional.”
35
28. As noticed earlier, this decision of the High Court of
Judicature at Bombay was assailed by the assessee before this
Court by way of Civil Appeal No. 1551/2008, which came to be
summarily dismissed on 7.3.2008. We are conscious of the fact
that this Court had summarily dismissed the said appeal.
Nevertheless, the view expressed by the High Court of Judicature
at Bombay, as reproduced above, commends to us.
29. The appellant had placed emphasis on the decision in The
and
Bhopal Sugar Industries Ltd. (supra) R.B.F. Rig
Corporation, Mumbai (supra) to contend that the Department
cannot be permitted to take contrary position than the direction
given by the High Court of Delhi. For the reasons indicated
hitherto, in our opinion, the basis of this submission is ill
founded. The authorities have not been nor could be prohibited
by the High Court of Delhi from proceeding with the matter in
accordance with law. In the present case, all that the authorities
have done is to follow the procedure consequent to provisional
assessment, by passing a final order and raising demand on the
36
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 B13 and the monthly
RT12 returns filed from time to time for the relevant period.
30. It is not necessary for this Court to dilate on the other
observations in the decision of the High Court of Judicature at
Bombay in . For the same
The Jam Shri Ranjitsinghji (supra)
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 RT12 returns itself be
treated as Show Cause Notice. It is not necessary to dilate
further on this aspect.
31. Similarly, the exposition of this Court in Metal Forgings
and
(supra) 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 B13
by the appellantassessee at its own volition, which is referable to
37
provisional assessment procedure under Rule 9B of the Rules.
Once the appellant submitted itself to that procedure without
any demur pending disposal of the writ petitions, it is not open to
later on resile therefrom. Permitting the assessee to do so, would
inevitably result in giving undue advantage and favour to the
assessee, who had invoked the remedy under Article 226 of the
Constitution of India and sought interim protection on offering to
execute bonds in Form B13 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
will also be of no avail to the appellant. For, the
(supra)
appellant had voluntarily executed the bonds and also filed
monthly RT12 returns, on which endorsement had been made
indicative of being a provisional assessment.
32. Taking overall view of the matter, we are of the considered
opinion that the appellant cannot be allowed to approbate and
reprobate for inviting the High Court of Delhi to pass interim
order stipulating that the appellant would execute bonds in Form
38
B13 referable to Rule 9B of the Rules and continue to file
monthly RT12 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.
33. Resultantly, this appeal deserves to be dismissed and the
same is accordingly dismissed with no order as to costs. Pending
interlocutory applications, if any, shall stand disposed of.
…………………………..J
(A.M. Khanwilkar)
…………………………..J
(Dinesh Maheshwari)
New Delhi;
December 9, 2019.