ASSISTANT COLLECTOR OF CENTRAL EXCISE, CALCUTTA DIVISION versus NATIONAL TOBACCO CO. OF INDIA LTD.

ASSISTANT COLLECTOR OF CENTRAL EXCISE, CALCUTTA DIVISION

NATIONAL TOBACCO CO. OF INDIA LTD.

August 9, 1972 [A. N. RAY, I. D. DUA AND M. H. BEG, JJ.]

Central Excise Rules-Rule 10. and lOA, Whetlwr tlw impUlned notice fell under Rule 10 to be ineffective and barred by limitation.

wbleh

The respondent malllli'acturea ciprettea II( its factory 11p0o wbleh Excise Duty is levied by the Assistant Collector of Central Excise, Calcutta Division. The rates varied accordina; to the provision& ot Finance A.ct, 1951, and 1956 and the Additional Duty of Excise (Goods of Special Importe~ce) Act, 1957. The Company was required to furnish quarterly consolidated price lists and the. particulars Of cigarettes to be cleared were furnished by llhe Company as. required by Rule 9 of ~ Central Excise Rull'". Fot faciUtating collection of duty, the Company maintained large sum of money in Current Account with the Central &cise authoritil'", who used to debit this account for the duty leviable on each stock of cigarettes allowed to be removed.

The Company used to furnish its quarterly price lists to the Collector on forms containing nine columns R!ld until July 1957, so long as this form was used by the Company, no difficulty was experienced in checking prices. Bu~ after this column .was dropped from the new fom1 of si" columns, the Excise authorities encountered some difficulty in valuing the cigarettes for levying Excise Duty. They tllerefore, changed the basis of assessment from the Distributors selling priee to the wholesale oash selling price at which stockists or agents were selling the same in the open market.

The authorities informed the Company of this change of basis on 5-11-58 bv letter, which also asked the Company to furniSh its price lists immediately for determining the correct assessable value of its cigarettes. Two days thereafter, the authorities served notice upon the Company demanding payment of Rs. 1,67,072,40 P. as Basic Central Excise Duty and R•. 74,574,85 P. as Additional Central Excise Duty on ground of short levy for certain brand of cigarettes cleared from Company's Factory between 10th August 1958. After another five cklys, the authori-ties sent another notice demanding more than Rs. 6 lakhs as Basic Central Excise Duty and more !ban Rs. 2 lakhs as Additional Central Excise Duty. On too following day, the authorities ~t tlilid notice under Rule 10-A of the Central Excise Rules, demanding more than Rs. 40,000/-as Central Excise Duty and more than Rs. 16,000/· as AdditionaI Duty.

The Company challenged these notices by e. writ before the High Court. The High Court quashed the notices on the ground that the Coolpany had not been given an opportunity of being heard. No appeal was filed by the other side against this decision, but when the case went back to the Colleclior, he issued fresh notice on 24-4-1960. By th~ notice, f~r certain periods. sum of more than Rs. 10 Iakhs was levied as B~c Central Excise Duty and total sum of more than Rs. 3 lakhs as Addi-tional Duty, and Ibis amount had been provisionally debited in the Com-pany's Accouiit on the basis of the price list ~upplied by the Co:npan_y and the Company was informed that if it desired personal hearing, ti

can apl'ear before the authorities to nrnke the final assessment in accord· ance with law.

The Company challenged the validity of this notice dated 24-4-60 O!l the ground !hat the notice was barred by. limitation and was issued without jurisdicltion, so that no proceedings could be taken. ·The learned single Judge, as well as the Divisional Bench of the High Court allowed the petition on the ground that the notice was barre& by time under Rule 10 of the Central Excise Rules because the notice was held to be fully covered by Rule 10 and by no other rule. The case was certified under Art. 33 (a). (b) and ( d) for an appeal· to this Court. Rule 10 of tho Central Excise Rules provides that when duties or charges have been short levied through inadvertence or misconstruction etc., the person chargeable with' the duty so short levied, shall pay the deficiency or pay the amount paid to him in excess on written demand by the proper officer within three months from the date on which the duty or charge is paid or adjusted in the owner's account, if any, or from the date of making the refund. It was ·contended that this was substantially provisional. assessment covered bv. Rule 10-B. The Division Bench of the Higb Court, however, refused to agree that the impugned notice of 24-4-60 fell under Ru!., 10-A. The reason given for this refusal was that such Clase was neither taken before the learned single Judge, nor could be found in the grounds of the appeal despite the fact that the appellant bad ample opportunity of amending its Memorandum of Appeal. Allowing the appeal.

HELD : ( i) That the High Court erroneously refused to consider whether the impugned notice fell under Rule 1 ().A. The applicability of Rule 10-A was very much in issue because the Collector in bis affidavit denied that Rule !O·A of.the ss;d rules had any applicatioit to the facts of the case.

(ii) It cannot be accepted that merely because lhe current account kePt under Rule 9 indicl>ted that an accounting had taken place, there was necessarily legally valid or complete levy. The making of de~it entries was only on ground of coller.tion of the tax. Even if payment or actual cpllection of tax could be spoken of as defective levy, it was only provisional and not final. It could only be closed or invested With validity after carrying out the obligation to make an assessment that really deter-mines whether the levv is short or complete. It is not faatual or presum-ed levv which could prove an assessment. This has to be done by proof of the actual steps taken which constitute as•essment.. f1836D)

mechanical adjustment, or settlement of accounts by making debit entries was gone through in the present case, but it cannot be said that any such adjustment is assessment which is quasi-judicial process and involves due application of mind to the fact's, as well as to the require-ments of law. Rule 10 and JO-A seems to be so widely worded as to cover any i11advertance error et.c.; whereas Rule 10-A would appear to 'cover any deficiency in duty if the duty has, for any reason, been sbort-levied, except that it would be outside tlbe purview of Rule 10-A if its collection is expre8sly provided or by any rule. Both the rules as they stood at the relevant time, deal with collection, and not with assess-II ment. In N. B. Sanjana!s case (A.LR. 1971 S.C. 4039) this Court indi. cated that Rule JO-A which was residual, in character, would be inappli. cable if case fell within sj)ecmed category of cases mentioned in Rule 10. It was pointed out in Sanjana's case that the reason for the addition

ot the new rule 10-A was decision of the Nagpur (Chotabhai Jeti:a-hhai'• case; A.LR. 1952 Nagpur 139), so that fresh demand may be made on basis altered by law. The excise authorities had made fresh demand under Rule 10-A, the validity of which· was challenged, but it was upheld by Full Bench decision of the High Court of. Nagpur. This Court, in Chotahhai Jetliabhai's case also rejected the assessee's claim that Rule JO-A was inapplicable alter pointing our that the new rule was specifically designed for the enforcement of the demand like the present one. r836F-837E]

(iii) The present case, therefore, falls within the residuary clause o( unforeseen cases from the provisions of S. 4 of the Act, read wih Rule 10--/\, an implied power to carry ·out or complete an assessment, not specifically provided for by the rules, can .be inferred. Therefore, it is wrong to hold that the case falls under Rule 10 and not under Rule IO-A.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1101 Of 1967.

Appeal by certificate from the judgment and order dated September 28, 1966 of the Calcutta High Court in Appeal No. 7 of 1965.

dated

G. L. Sanghi, B. D. Sharma and S. P.

Nayar, for 'the

appellant.

A. K. Sen, B. P. Maheshwari and Shambhu Nath Chunder,

for 'the respondent.

The Judgment of ithe Court was delivered by

Beg, J. The National Tobacco Co. of India Limited (herein-.

after referred to as "the Company"), the Respondent in the appeal before us, manufactures Cigarettes, at i'ts Factory in Agrapara, upon which Excise duty is levied by the appellant, the Assistant Collector of Central Excise, Calcutta Division (hereinafter re-ferred to as "the Collector"). The rates at which ~he Excise duty was imposed upon the cigarettes of the Company under the pro-visions of the Central Excise ancJ Salt Act of 1944 (hereinafter referred to as "the Act") were varied, from time to time, by the provisions of Finance Acts of 1951 and 1956 and the Additional Duties of Excise (Goods of Special Importance) Ac: of 1957. The Collector maintained an office at the factory itself for the levy and collection of tax. The Company was required to furnish quarterly consolidated price-lists which used to be accepted for purposes of enabling the Company to clear its goods, but. ac-cording to the Collector, these used to be verified afterwards bv obtaining evidence of actual sales in the market before issuing final certificates that the duty had been fully paid up. The particulars of ~he cigarettes to be cleared were furnished by tho~ Company on forms known as A.RI forms required by Rule 9 of the Central Excise Rules. For facilitating collection of duty, the Company maintained large sum of money in current account with the

Central Excise authorities who used to debit in this account the duty leviable on each stock of cigarettes allowed to be removed. This current account, known as "personal ledger account", was. maintained under the third proviso 'to Rule 9 which lays down 9(1) .. • • • • • •

Provided also that the Collector may, if he thinks fit, instead of requiring payment of duty in respect of each separate consignment of goods removed from the place· or premises specified in this behalf, or from store room or warehouse duly approved, appointed or licensed by him keep with any person dealing in such goods an account-current of the duties payable thereon and such account shall be settled at intervals not exceed-ing one month and the account-holder shall periodically make deposit therein· sufficient in the opinion of the Collector to cover the duty due on the goods intended to be remo~d from the place of production, curing, manu-facture or storage'.',

0 It appea{s that the company used to furnish its quarterly price-lists to the Collector on forms containing nine columns in-cluding one to show the "distributors' selling price". Until July 1957, so long as this form was used by the Company, no diffi-culty seems to have been experienced in checking the price:;, But, after this column was dropped from the new form of six columns, the excise authorities seem to have encountered some difficulty in valuing the Cigarettes for levying excise duty. They, therefore, changed the basis of assessment itself from "the Distributors• Selling Price" to "the wholesale cash selling price at. which stockists or a.gents are selling the same to an independent buyer in the open market". They held the vi·~w that such charge could be made having regard to the provisions of Section 4 of the Act. The Deputy Superintendent of Central Excise informed the Com-pany of this change of basis on 5-11-1958 by Jetter which also asked th.~ Company to furnish its price lists immediately "for determining the correct assessable value" of its cigarettes. On 7th November, 1958, the Deputy Superintendent served notice· upon the Company demanding payment of sum of Rs. 1.67,072,40 as basic Central Excise duty and. Rs. 74,574,85 as additional Central Excise duty on account of short levy for certain brand of cigarettes cleared from the Company's factory from 10th August, 1958 to 5th November, 1958. On 12-11-1958, the Deputy Superintendent sent another notice demanding payment of sum of Rs. 6,16,467,49 as basic Central Excise duty and Rs. 2, I 0,492, l 5 as additional cen-tral excise duty for short levy in respect of · some brands· • of cigarettes cleared from the factory between 1-11-1957 to 9-8-1958~ On 13-11-1959. 'the Deputy Superintendent sent a··

third notice to the Company under Rule l 0-A of the Central Ex~ise Rules 194~. demanding payment of Rs. 40,726,48 as basic Central Excise duty and Rs. 16,958.50 as addHionc1l duty for shor't levy in respect of various brands.

The Company applied to the Calcutta High Court under Arti· cle 226 of the Constitution against the three notices mentioned above, one of which specifically under Rule 10-A and the other two under Rule 10 of the Central Excise Rules. learned single Judge of that Court quashed •the notices by his order of 15-2-1960 on the ground that the Company had not been given any oppor-tunity of being heard so as to be able to 'meeit the material col-lected behind its back which formed the basis of the demanJs under the aforesaid three notices. On joint request of both >ides, the High Court did not decide the questiOfl whether notices of demand were time barred. But, 1he learned Judge said :

"Notl:tjng in this order will prevent the respondent

from proceeding to take any step that may be necessary for such assessment or for the realisation of the revenue in accordance with the law".

The learned Judge had also held that neither the basis adopted by the company nor tha!t put forward by the Col~~ctor was correct. The' learned Judge pointed out the correct basis which was considered by him to be in consonance with the provisions of Section 4, sub.s(a) of the Act. He indicated the various factors required bv Section 4 of the Act which had to be taken into account and held :

"The determination as to whether wholesale market exists at the site of the factory or the premises of manu-facture or production etc. or which is the nearest whole-sale market, [1]or the price at which the goods or goods of like kind and quality are capable of being sold must 11e".. cessarily be complicated question and must be deter-mined carefully upon evidence and not arbitrarily. Such determination cannot wholly be made ex-parte, that is· to say, behind the oack of the assessee. satisfactory deter. mination can only be made by giving; all information to the assessee and after giving the assessee an opportunity of establishing his own point of view, or checking and/or challengin_g any material or evidence upon which the Excise Authorities wish to depend".

As no appeal was filed by either side against this decision, it became final a:nd binding l:,letween parties before us so that the question wether the High Court has correctly interpreted Section 4 of the Act in determining the basis on which the excise duty leviable could be assessed is not under consideration here.

When the case went back to the Collector, he issued a· fresh notice on 24-4-1960. As the validity of 'this notice is the real question. now in issue in the appeal before us, it may be repro-duced in toto here. It turns as follows :

Regi&l.ered A/D

GOVERNMENT OF INDIA

Collectorate of Central Excise

Office of the Assistant Collector of Central Excise, Calcutta I Division (5, Clive Row), Calcutta

NOTICE

C. No. Vl(b) 1413/58/3886· Dated 21st April, 1960

To M/s. National Tobacco Co. (India) Ltd.,

Agarpara,

24 Par.e;anas.

In connection with the assessment of Central Excis.e duties for the periods :

I. from 1st October, 1957 to 5th November, 1958

in respect of 316,885,000 of "No. Ten" brand Cigaret-tes.

rr. from 1st January, 1958 to 28th January , 1958

in respect of 6,600,000 of "D.L.T. Mag" Cigarettes.

III. from 1st January, 1958 to 5th February, 1958

in respect of 9594,000 of "May Pole" Cigarettes.

IV. from 1st January, 1958 to 7th February, 1958 ill respect of 3143,500 "Carltons Gold Seal" Cigarettes.

V. froJll 1st January 1958 to'31st January, 1958 in respect of 1471,250 of "John Peel" Cigarettes.

VI. from bt January, 1958 to 16th Jannary,J958 in respect of 8200,000 of "Light Honse" Cigarettes.

VII. from lst January, 1958 to 16th January, 195S in respect of 9070,000 of "Gold Link" Cigarettes.

Please note that sum of Rs. 10;)5,133.25 np. (Rupees 10 lacs

five thousand one hundred thirty three and twenty-five naya paise only) as basic Central Excise duty and total sum of Rs. 3,43,208.25 np. (Rupees three lacs forty-three lhonsand two hundred eight and twenty-five naya paise only) as additional duty had been provisionally debited in your account on the basis of the price list supplied to us by you for the quarters :

ff 3,43,208.25 np. (Rupees three lacs forty-three lhonsand two

(i) beginning October, 1957 dated 17th October, 1957.

(ii) pc~inning January, 1958 dated nil. (iii) beginning April, 1958 dated 14th April, 1958, and

liv) be_ginning July, 1958 dated 14-7-58, and

(v) beginning October, 1958, dated nil.

2. We now prupose to comolete the assessments for the said periods from the evidence in oLir possession from which it ap-pears:-

(i) that there is no wholesale ma<ket for the goods covered by your price lists in or near the factory or the place of manufacture and that the nearest wholesale mar~et for the sale is the Calcutta market.

(ii) the wholesale cash price of the artic;les in ques-tion at •the time of sal·~ and/ or removal of the g.oods at the Calcutta market at which goods of like kind or quality are sold or are capable of being sold have been ascertainoo by us and the. evidence at our disposal reveals that the prices quoted by you in your price-liSlt are not correct.

3. The prices are as per chart annexed hereto which has been

prepared on the basis of available evidence in tem1s of section 4(a) of the Central Excise and Sale Aot, 1955. The vouchers mentioned in the chart are available for your inspection at any time next w~k during office hours. After obtaining inspection of the voucllers please attend at our office at 5 Clive Row, Cal-cutta 0n 2nd May 1960 at 10.30 a.m. for the pmrme of discuss-in.g the points mentioned above.

4. We are prepared to give you personal hearing,with regard

to all the points indicated above. If you have any evidence in support of yo1!J contention you are at liberty to produce the same at the time of hearing. Thereafter please note that we propose to make 'the final assessment in accordance with law. Sd./- (N. D. MUKHERJEE) Assistant Collector of Central Excise, Calcutta I Division, CalcuttaH

The Company challenged the validity of this notice by means of second petition for Writs of Prohibition and Mandamus against the Collector on the ground that the notio~ was barred by time

ASST. COLLECTOR v. NATIONAL TOBACCO CO. LTD. (Beg, J.)

and was issued without jurisdiction so that no proceedings found-ed on it could be taken. It was prayed tha·t the Collector'may be ordered to cancel the notice. The petition wa> allowed by learned Single Judge of the Calcucta High Court on 3-1-1964 on the ground that such notice was barred !Jy ihe provisions of Rule 10 of the Central Excise Rules because the notice was held to be fully covered by Rule 10 and by no other rule. Division Bench of the High Court confirmed this view on 8-9-1966 and dismissed the Collector's appeal. The case having been certified, under Article 133(a), (b) and (c) for an appeal to this Court, _this questic~n is before us now.

The Jearned Single Judge as well as the Division Bench of the Calcu'tla -High Court said that th.ere was not enough material on record to conclude that there was any "provisional vssessment" under Rule 10-B (deleted on 1-8-1959 and substituted by Rule 9-B) which laid down :

"lOB. PROVISIONAL ASSESSMENT OF DUTY ,_

( 1 ) Notwithstanding anything contained in 'these rules

(a) There the owner of any excisable goods makes and suoscribed declaration before the proper Officer to the effect that he is unable for want of full information to state precisely the real value or description of such goods in the pro-per Form·: or

(b) Wht;re the owner of any goods has furnished full information in regard to the real value or description of the goods, but the proper Officer requires further proof in respect thereof; or ( c) Where the proper Officer deems it expedient to subject any eKcisable goods to any chemical or other test,

The proper Officer may direct that the duty

leviable on such .goods may, pending the pro-duction of such information or proof or pending the completion of any such test, be assessed provisionally.

(2) When the owner of any goods in respect of which the duty has been assessed provisionally under sub-rule(l) has paid such duty, the proper Officer may m~ke an order allowing the goods to be cleared for home consumption or for exporta-tion, as case m?,y be and such order shall be sufficient aut:lority for the removal of the goods ~ the owner :-

Provided that before making any such order the pro-per officer shall require the owner to furnish bond ia the proper form binding the owner to pay the differen-

tial duty when the final assessment is made. ( 3) When the du(y !•~viable on such 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 owner of 'the goods shall pa} the deficiency or .be entitled to refund. as the case may be."

No order directing provisional assessment, contemplated by Rule 10-B, (applicable at the relevant time) has been placed be-fore us. Nor was the Company asked by the Collector to furnish · bon'd to pay up the difference after making final assessment as was required under Rule 10-B. It was, however, contended for· the Collector tha1 the execution of bond, for the satisfac-1tion of the Collector. could be dispensed with in case where the Company kept large sum of money in deposit in the "personal ledger account" to guarantee its ability to meet its liabilities. It was also pointed out that the learned Single Judge as well as the Division Bench had found that ~the practice of provisionally ap-proving tbe price-lists supplied by the Company, pending accep-tance of thdr coirectness af1er due verification, had been esta-blished as mater of fact. It was submitted tha1 this was sub· stantially "provisional assessment" cover<!d by Rule 10-B, ~!­though i't may not conform !:J the technical procedural requi«e-ments of such an asessment.

Even if the making of debit entries could, on the facts of the case, be held to be merely provisional w~ think that wha1 took place could nat be held to be "provisional assessment" within the provisions of Rule 10-B which contemplated the making of an order directing such an "assessment" after applying the mind to the nt;ed for it.

Before proceeding further we will deal with the question :whether the Division Bench correctly refused to permit an ar.curnent tha'. the impugned notice of 24-4-1960 fell under Rule I 0-A. The ground given for this refusal was that such case was neither take11 before the l·~arned Single Judge nor could be found in the grounds of appeal despite the fact that the appellant had ample opportunity of amending its Memorandum of appeal. The appellant has, however. relied on previous intimation given to the coun~el for the respondent that such contention would be advanced at the hearing of the appeal and also on an appli-cation dated 21-3-1966 praying for permission to add the alter-native ground that the impugned notice fell under Rule 10-A. We think that this refusal was erroneous for several reasons. Firstly the <:ompany having come 'to Court for Writ of Pro-hibition on the ground that the impugned notice was issued with-

out. iurisdiction had necessarily to establish the case which it sets up m paragrap.h 25 of its Wriit Petition, that the notice was not authorised by ithe rules including Rule 10-A. As the notice of 21-4-1960 was followed on 4-5-1960 by correction by another notice of certain statements both the notices were assailed in para-graph 25(ii) in the following words :

·'The respondent has mala· fide and without juris-diction issued the said impugned notices pretending to fal~ely state that the aggregate sum therein mentioned has been provisionally debited in your petitioner's account and pretending to intim;ite to your petitioner that the respondent proposed to complete the assess-ment, .and thereby, he is seeking, under the guise of complel!ng an alleged assessment which had already been compl~ted and duty in respect whereof had al-ready been paid, to do indirectly what he could not do directly inasmuch as Rule !OA of the said Rules has no application to the facts of the case and inasmuch as recovery of any duty which might have been short levied under Rule 10 of the Rules is barred by limita-tion'".

This as9~f'tion was met by categorical denial by the Collector in para.graph 26(ii) of the Collector's affidavit in reply where it was stated tirnt it was denied "that Rule 10-A of the said Rules had no application 'to the facts of fu.e case as alleged or that the recovery of any duty which had been short levied was barred by limitation under Rule 10 of the said Rules as alleged or at all". Thus, the applicability of Rule 10-A was very muc1' in issue. Secondly, we find, from the Judgment of tho~ learned Single Judge that, ;1s the burden lay upon the petitioning Company to demonstrate, for obtaining Writ of Prohibiticn, that the im-pugned notice was not authorised by any rule, its counsel had contended, inter-alia, that the notice did not fall under Rule 10-A. The question was thus considered by the learned Si:1gle Judge. Thirdly, the qw~stion whetlier the Collector did or did not have the power to issue 'the impugned notice under or with the aid of Rule 1 O·A was question of law and of jurisdicti0n. going to the root of the case, which could be decided without takine fu~ther evidence. Indeed, as the burden was upon the petitionin.g Company to show that the irr.pugned notice w:is issued without jurisdiction, finding that 'th>~ notice did not fall even wihtin Rule 10-A was necessary before Writ of Prohibi-tion could issue at all. We think that the Division. Bench ou~ht to have permitted the question to be argued, sub1ect. to giving due opportunity to the petitioning Company to meet it on such

~erms as the Court thought fit, even if the point was not taken m the grounds of appeal. Therefore, we will consider this ques-tion also.

Rule

10 of the Cen1ral Excise Rules, ran as follows :

"10. Recovery of duties or charges short-levied. or erroneously refunded-

When duties or charges have been short-levied, through inadvertence, error, ·collusion or mis-construc-tion on the part of an officer, or through mis-statement .as to the quantity, d~cription or value of such goods on the part of the owner, or when any such duty or charge, after having ~en levied, has been owing to any such ·cause, erroneously refunded, the person charge-able with the duty or charg>J, so short-levied, or to whom such refund,.P~ been erroneously made, shall pay the deficiency.·or pay the amount paid to him in excess, as the case may be, 'On written demand by 1he proper officer being made within three months from the date on which the duty or charge was paid or ad-justed in the owners account-current, if any, .1r from the date of making the refund".

Rule 10-A reads as follows :

"10-A Residuary powers for recovery of sums due to Government.-

Where these Rules do not make any specific pro-vision .for the collection of any duty, or of any defi-cier.;;y in du1y if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall, on written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify."

The two rules set out above occur in Chapter III of the Central Excise Rules 1944 headed "Levy and Refund of, and Exemption from Duty". Rule 7 merely provides tha1 the duty leviable on the goods will be paid a1 such time and place and to such person as may be required by the rules. Rule 8 deals with power to authorise exemptions in special cases. Rule 9 ( 1) provides for the 1ime and manner of payment of duty. This rule indicates that ordinarily the duty leviable must be paid before excisable goods are removed from the place where they are manufactured or stocked, and only after obtain-ing the permission of the officer concerned. The third proviso

(Beg, J.)

to Rule 9 has already been sef out above. Rule 9 (2) provides for the recovery of duty and imposition of penalty in cases where Rule 9 sub. r ( 1) is violated. Rule 9A specifies the date with reference to which the duty payable is to be determined. We are not concerned here with Rules 11 to 14 dealing with refunds, 'rebates, exports under bonds and certain penalties for breaches

·of Rules.

Rule 52 and 52-A, found in Chapter V, dealing with number of marters rdating to "Manufactured Goods", may also be cited here :

• "52. Clearance on payment of duty-When the manufacturer desires to remove goods on payment of duty, either from the place or premise specified under · rule 9 or from store-room or o:her place of storage approved by the Collector urider rule 47, he shall make application in triplicate (unless otherwise · by rule or order required) to the proper officer in the pro-per J'orm and shall deliver it to the Officer at least twelve hours (or such other period as may be else-where prescribed or as the Collector may in any parti-cular case require or allow) before it is intended to remove the goods. The officer, shall, thereupon, assess the amount of duty .due on the goods and on production of evidence that this sum has been paid into the Treasury or paid to the account of the Collcc-. tor in the Reserve Bank of India or the State Bank of India, or has been despatched to the Treasury by money-order shall allow the goods to. be cleared". "52A. Goods to be delivered on Ga:tepass-(1) No excisable goods shall be delivered from factory except under gatepass in the proper form or in such other form as the Collector may in any particular case or class of cases prescribe signed by the owner of the factory and countersigned by the proper officer." It will be nO'!iced that in Chapter III, the term "assessment" was used o!J]y in the former rule 10-B, corresponding to the present rule 9-B, while dealing with provisional. assessment of duty. But, Rule 52 shows that an "assessment" is obligatory before every removal of manufactured goods.. The rules, how-ever, neither specify the kind of notice which should precede · asses,ment nor !av down the need to pass an as5"'ssment order. All we can say in that rules of natural justice have to be observed for, as . was held by this Court in K. T. M. Nair v. State of Kera/a('), "the asse«ment of tax on person or property is atleast of quasi-judicial character".

(I) [1~~1] 3 S.C.R. 77@ 94.

~L-172 S,p.CJ/73

Section 4 of the Act Jays down what would determine the value of excisable goods. But, the Act itself does not. r't!cify procedure for assessment presumably because this was meant to be provided for by 1the rules. Section 37 ( 1) of the Act lays down that "the Central Government may make rules to carry into effect the purposes of this Act". Section 37, sub. • (2), particularises "wit!Jout prejudice to the generality of the fore-B going power" that "such rules may provide for the assessment and collection of dutie> of exci;e, the authorities by whom functions under this ~ct are to be di~charged, lth.e issue of' notice re<juiring payment, the manner in which the duty shall be payable, and the recovery of duty not paid". It is dear from Section 37 that "assessment and collection of duties of excise" is part of the purposes of the Act, and Se~tion 4, dealing with the determina-tion of value for the purposes of the duty, also seems to us to imply the e~istence of quasi-judicial power to assess the duty payable in cases of dispute. "Collection", seems to be term 11sed for sta_ge subsequ.!nt to "assessment". In case where the basis of proposed assessment is disputed or where contest-ed questions of fact arise, quasi-judicial procedure ha; to ):ie adopted so as to correctly ass~ss the tax payable. Rule 52 cer-tainly makes an "assessment" obliJwtory before removal of goods unless the procedure for "provisional assessment" under Rule 10-B (now rule 9-B) is adopted. But, if no quasi-judicial pm-ceeding, which could be described as an "assessment" . lther under R::le 52 or "provisional as5essment" under Rule l 0-B (now Rule 9-B) takes place at the proper time and in accord-ance with the rules, is the Collector debarred completely af•~r­wards from assessing or completing assessment of duty payable ? That seems tu us to be the real question to be decided here.

One of the arguments on behalf of the Collector was tliat no "assessment", for the purpose of determining the value of excisable good_s, having taken place in the case before u>, there could be no "levy" in the eve of law. It was urged that. even if there was no "provisional assessment", as contemplated ·by Rule I 0-B. whatever took place could, at the most, be charac-terised ~" an ";ncomplete assessment", which the Collector-could proceed to complete even after the ,emoval o~ the goals .. It was contendec' that 0 uch case would be outside the purvt-:!W of 'Rule 10 as it was not determined whether there actually was short levy. Hence, i't was submitt~d there was no question of proceeding barred by the limitation prescribed for makin<r demand for short levy in certain specified circumstances. The Division Bench, while repelling this contention, held :

"In the present case, it aPPCars that the procedure adopted was that the respondents issued price list

(Beg, J.)

In that price list, they gave their own esti-

quarterly. In that price list, they gave their own esti-mate as to the value of the goods. For the time being the exci~e authorities accepted the value so given, and gave provisional certificate to that effect,, intending to check the market value and then finally gitermine the value later on. The procedure for issuing price list of approvjng tlie same provisionally and accepting pay-ment therefore according to the estimate of the manu-facturer, is , procedure which is not to be found either in the Act or the Rules".It may be observed that this finding, that the procedure of provisional acceptance of the Company's estimates was ad()flt-c ed, seems inconsistent with another finding that what took place was final adjustment of accounts within ~he purview of the 3rd proviso to Rule 9, set out above, constituting "levy" ac-' cord to Jaw. The Division Bench appears to have regarded this procedure of an almost mechanical levy as equivalent to complete assessment followed by the payment of the tax which constituted valid "levy". Hence, it concluded that, there be· ing legally recognised levy, the only procedure open to the Col-lector for questioning its correctness was one contemplated by Rule I 0 so that demand for short levy had to be made within 3 months of .the final "sett1ement of accounts" as provided speci-fically by Rule · 10. The Division Bench considered this pro-cedure to be an alternative to an assessment under Rule 52 at the proper _!ime and also to provisional assessment in accor-dance with the procedure laid down in Rule 10-B. But, to re-gard the procedure under Rule 10 as an alternative to an assess-ment would be to overlook that it presupposes an as;essment which could be reopened on specified grounds only within the period given there.

The term "levy" appears to us to be wider in its import than the te1m "assessment". It may include both "imposition'' of tax as well as assessment. Th term "imposition" is · gene-rally um! for the levy of tax or duty by legislative provi-sion indicating the subject ma'tter of the tax and the rates at which it I.as to be taxed. The term "assessment", -0n the other hand, is generally used in this country for the actual proce-dure adopted in fixing the liability to pay tax on account of particular goods or property or whatever may be the object of the tax in particular case and determin:ng its amou11t. The Division Bench appeared to equate "levy" with an "assessment" as well as with the collection of tax when it held that "when the payment of tax is enforced, there is levy". We ihink that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does 11ot seem t(}

•s to extend to "collection". Article 265 of the Constitutio• makes distinction between "levy" and "collection". 'We also .find that in N. B. Sanjana Assistant Collector of Central Excise, Bombay & Ors. v. The Elphinstone Spinning & WeMint Mills Co. Ltd.,A(1 ), this Court made distinction betwe~11 "levy" "levy" and "collection" as used in the Act and the Rules before us. It ~aid ther·~ with reference to Rule 10 :

Article 265 of the Constitutio• 'We also of Central The Elphinstone Spinning & WeMint betwe~11 "levy" "levy" us. It .a

"We are not inclined to accevt the contention of of Dr. Syed Moha'mmad that the expression 'levy' in Rule 10 means actual collection of some amount. The charging provision Section 3 ( 1) specifically says. 'There shall be levied and collected in such manner as may be prescribed the duty of excise .... ' It is to be noted that sub-section (i) uses both the expres-sions "levied and collected" and that clearly shows that the expression 'levy' has not been used in the Act or the Rules as meaning actual collection".

We are, therefore, unable ito accept the view that, merely because the "account current", kept under the third proviso I) (erroneously mentioned as second proviso by the Divisioa Bench) to Rule 9, indicated that an accounting had taken place, lhere was necessarily legally valid or complete :evy. The making of debit entries was only mode of coll'!Ction of the tax. Even if payment or actual collection of tax coµld be spoken of as de facto "levy" it was only provisional and not final. [t could only be clothed or invested with validity after carrying out the obligation to make an assessment to justify it. Moreover, it is the proces, of assessment that really determines whether the fovy is short or complete. is not factual or presumed levy which could, in disputed case, prove an "assessment". Thia· bas to be done by proof of the actual steps taken which comlti-tute "assessment".

Undoubtedly, mechanical adjustment and ostensible settlo-ment of accounts, by making debit entries, was ~one through ia tlie case before us. · But, we could not equate such an adjust-ment with an assessment, quasi-judicial process which involve& due application of mind to the facts as well as to the require-ments of law, unless we were bound by law to give an unusual interpretation to the term "assessment". Here, we do not find any such dejinition of assessment or anv compellir1g reason to hold thllt what could at most be mechanical provisional col-lection, which would become "levy" in the eve of law only after an "assessment", was itself levy or an assessment.

Rules 1 O and IOA, placed side by side, do raise difficultiell of interpretation. Rule 10 seems to be so widely worded as t• (!) A.I.R. 1971 S.C. 2039 @ 2045

cover any "inadvertence, error, cullusion or mis-construction Oil the part of an officer", as weli as any "mis-statement as to th• quantity, description or value of such goods on the part of th• owner" as causes of shol't levy. Rule 10-A would appear to rover any "deficiency in duty if ithe duty has for any reason been short levied", except that it would be outside the purview of Rule lOA ·if its collecJion is expressly provided for by any Rule. Both the rules, as they. stood at the relevant time, dealt with col-lP-ction and not with assessment. They have to be harmonised, In N. B. Sa11jana's case (Supra), 'this Court harmonised them. by indicating that :Rule lOA, which was residuary in character, would be inapplicable if case fell within specified category of cases mentioned in Rule 10.

It was pointed out in Sanjana's case (Supra) that the reatoll for the addition of the new Rule 1 OA was de~ision of the Nagpur High Court in Chhotabhai Jethabhai Patel v. Union of India('), so that fresh demand may be macJ.~ 011 b~sis al-tered by law. The Excise authorities had then made fresh de-D mand, under the provisions of Rule 10-A, after the addition of tha:t Rule, the validity of which challenged but upheld by FuB Bench of the High Court of Nagpur. This Court, in Chhota-bhai Jethabhai Patel & Co., v. U11io11 of India(') also rejected the assessee's claim that Rule 10-A was inapplicable after point· ing ou'l that the new rule had been specifically de;igned" for the enforcement of the demand like the one arising in the circum-stances of the case".

We think that Rule 10 should be confined to cases where the t!cmand is being made for short levy caused wholly by one of the reasons given in that rule so 'that an assessment has to be reopened. The findings given by the Calcutta High Court do not show that, in the case before us, 'there was either short levy er that one of the .grounds for short levy given in Rule 10 really and definitely existed. No doubt the Division Bench gave ~ reason for the way in which the claims became time barre!!, in the following words :

"It is quite possible, that the Excise· authvritics, in an attempt to help the appellants, by facilitating the movements of goods, inadvertently allowed the claims 10 be barred by limitation. That, however, is not matter which can affect the question of limitation. The ba.r of limitation has been imposed by Sta•ute. The morality of the case or the conduct of the parties is therefore irrek~vant unless the law provideo that the court on that ground ca'l afford relief".

Cl) A.I.R. 1952 Nag. 139.

This finding was presumably given to show that !he impugn-A cd notice fell within the purview of Rule 10 because the demand was due to short-levy caused by "inadvertence" of the officer concerned. It will be ncYticed that the Division Bench did not go beyond finding "possibility" of such inad veitence. 'This is not finding that ~t was definitely due to it. No finding which could clearly relate the case to any cause for ,.!ion levy found 8 in Rule 10 was given. Moreover, we find that there was no case taken up by the Company in its petition before the High Court that any short levy resulted from an inadvertence of the officer concerned fo the process of assessment. The case set ·up was that of levy after completed assessment, in ~ccordance with law, which could not, according to the Company, be reopened. If, therefore., as we find from the conclusions recorded by the High Court 'ii.Self what took place was not an "as~es~ment" at all in the eye of law, which could not be reopened outside the provisions of Rule 10, we think <that the case will fall beyond Rule 10 as it stood at the relevant time.

The notice set out above does not purport to . be under any particular rule probably because the Collector, in the circumstances of the case, was not certain about the rule under which the notice could fall. But, as was pomted out by this Court in Sanjana' s case (Supra). the failure to specify the pro-vision under which notice i, sent would not invalidate it if the power to issue such notice was there. The notice alleges that it is case of "incomplete assess-ment". The allegations contained in it have been characterised by the Jearned counsel for the Co)Ilpany as change of front intended to cover up <the neglet of the Collector in failing to comply with the correct procedure of making either an assess-ment before delievery contemplated by Rule 52 or provisional assessment under Rule 10-B. We are unable to hold, either upon the findings given by the High Court or upon facts trans-piring from the affidavits filed by the parties [1]that the notice was mere. cloak for some omission or error or inadvertance of the Col'.ector in making levy or an assessment.

issued

We may point out that Rule 10 itself has been amended and · made more reasonable in 1969 so as to require quasi-judicial procedure by serving show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owner's account current, if any". This amendmen1, made on 11-10-1969, indicates that the quasi-judicial procerlure, for finding on an alleged inadvertence, error, collusion, or mis-construction by an officer, or mis-statemen1 by the assessee, as tbe cause of an alleged short levy resulting from an assessment, can now be embarked upon ancl not necessarily completed

within the prescribed period. We are, however, concerned with the procedure before this amendment took place. At that tim~, it was certainly not clear wheither case wouid fall under Rule 10 even before the short levy or its cause was established. Fur-thermore, in the present case, the reason for an alleged short-levy could be change of basis of proposed &ssessmeni under instruCJtions from higher authorities mentioned above. Even that change of basis was held by [1]the High Court to be erroneous. Until the High Court indicated the correct basis there was an uncertainty about it. Such ground for an alleged short levy would be analogous [1]to the reason for the introduction of Rule 10-A itself which, as pointed out in N. JJ. Sanjana's case (Supra), was . change in the law. One could go back still fu11her and come to the conclusion that the real r.~ason for the alleged short Jevy was failure of the Company to supply the fuller information it used to supply previously and not just mi~-statement. lf the oase does not clearly come within the classes specilied in Rule 10, tllis rule should not be invoked because, as was rightly contended for the appellant, too wide ll construotion put on Rule 10 would make Rule lOA useless. The two rules have to be read together.

It is true that Rule 10-A seems to deal only with collection and not with the ascertainment of any deficiency in duty or im cause by quasi-judicial procedure. If, however, it is read in conjunction wi <h Section 4 of the Aot, we think that quasi-judicial proceeding, in the circumstances of such case, could take place under an implied power. It is well established rufo of constrnction that power to do something essential for the proper and effectual performance of the w0rk which the !iiatute has in contemplation may be implied [See Craies on Statute Law (Fifth Edition) p. 1051

The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before m, in view of the provisions of Section 4 of the Act read with Rule 10.A of the Central Excise Rule, was not examined by the Cal-cll'lta High Court because it erroneously shut out consideration of the meaning and applicability of Rule lOA. The High Court's view was based on an application of the rule of construc-tion that where mode of performing duty is laid down by law it must· be performed in 1hat mode or not :.a all. This rule flows from the maxim : "Expressio unius act e:Aclusio alteriu.r." But, as we poinrted out by Wills, J., in Colquohoun v. Bro.:>ks([1]) this maxim "is often valuable servant, but dangerous master " ·The rule ·is subservient to the basic principle that c~~~t~ must endeavour to ascertain the legislative intent and

purpose, ang then adopt rule of construction which effectuat~ rather than one that may defeat these. Moreover the rule of prohibition by necessary implication could be applied only where specified procedure is laid down for the· performance of duty. Although Rule 52 makes an assessment obligatory be-fore goods are removed by manufacturer, yet, neither 1hat rule nor any other. rule, as already indicated above, !ms specified the deiailed procedure for an assessment. There is no express pro-hibition anywhere against an assessment at any other time in the cirq1mstances of case like the one bcfc.;·~ us where no "a~sessment", as it is understood' in law, took place at ail. On 'tbe other hand, Rule 1 OA indicates that iii ere are residuary powers of ..!!laking demand in special circumstances not fore-c seen by th.e framers of the Act or [1]the rules. lf the assessee dis-putes the correctness of the demand an aiscssment becomes necessary to protect the interests of the assessee. A' case like th~ one before us falls more properly within the residuary class of unforeseen cases. We thin!: that, from the provisions of Section 4 of the Act read with Rule lOA, an implied power 10 carry out or complete an assessment, not specifically provided for by the rules, can be inferred. No writs of prohibition or mandamus were, therefore, called for in the circumstances of the case. Consequently. we allow this appeal and set aside the 0rd·~rs of the Calcutta High Court. The Collecto; may now proceed to complcte the asses<ment. In the circum~tanc•"s of the case, the parties will bear their owu costs throughout.

Appeal allowed