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TMI Blog1985 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... een filed and we are of opinion that these are fit cases which may be finally disposed of at this very stage as contemplated by the second proviso to Rule 2 of Chapter XXII of the Rules of Court. We have accordingly heard counsel for the parties on the merits of these writ petitions. 3. It has been urged by counsel for the petitioners that since no notice within the period prescribed under Rule 10 of the Excise Rules, 1944 (hereinafter referred to as the Rules), as they stood at the relevant time which is subsequently incorporated in Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), was issued to the petitioners, the recovery of the amounts mentioned in the citations have become time-barred and consequently the respondents have no jurisdiction to recover the same. 4. Having given our anxious consideration to the aforesaid submission we find it difficult to agree with the same. In the counter-affidavits filed in these two writ petitions it has specifically been stated that orders of assessment had been passed against the petitioners in regard to the years in question. We have no reason to doubt the facts stated in this behalf in the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned above reads as follows : "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid 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 short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement 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, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "six months", the words "five years" were substituted..............." 6. The statements and objects for inserting Section 11A as is to be found from the note a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification had been issued under Rule 8 exempting the same wholly from excise duty. Even though an order of assessment was passed in regard to the said goods in the appropriate portion of the relevant forms the amount of duty payable was shown as `nil' obviously because of the exemption. Subsequently, the excise authorities appear to have entertained some doubt about the goods aforesaid being covered by the exemption and issued notices requiring the respondents to pay a certain sum as duty. These notices were challenged on the ground that they not having been issued within the time stipulated by Rule 10 were barred by time. It was pointed out that Rule 10 applied only to cases where assessment had been made but the duty had been short-levied. In this connection it was held : "It follows that in order to attract Rule 10, it is not necessary that some amount of duty should have been assessed and that the said amount should have also been actually paid. That provision will apply even to cases where there has been a nil assessment in which case the entire duty later on assessed must be considered to be the duty originally short-levied." 9. The same very Rule came up for considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but only the amount assessed was sought to be realised, the same not having been paid by the person from whom it was payable. For recovery of such amount there was no limitation as is clear from Section 11 of the Act. 12. Rule 10 as substituted by G.S.R. 554(E), dated 6th August 1977 makes explicit what was implicit in the word "short-levied" used therein prior to its being substituted as aforesaid namely that it applied even to a case of `nil' assessment. It, however, continued to apply only to those cases where there had been either no levy in the sense of a `nil' assessment or short-levy and the earlier assessment was sought to be re-opened. It too did not apply to those cases where an earlier assessment was not sought to be re-opened but only the assessed amount was sought to be realised for which no limitation had been prescribed in Section 11 of the Act. 13. Indeed sub-rule (2) of Rule 10 as substituted by G.S.R. 554 (E), dated 6th August, 1977, itself substantiates the view that Rule 10 applied only to cases where an earlier assessment was sought to be re-opened as this sub-rule contemplated a fresh determination of the amount of duty due which is tantamount to making a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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