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TMI Blog1988 (8) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and cleared from the factory at Agarpara during the period September, 1981 to February, 1983 and also addendum to the show cause notice dated October 3,1986. The grievance is that these show cause notices are in excess of the jurisdiction and/or without authority of law inasmuch as the petitioner had been paying excise duty on the basis of the provisional assessments pursuant to filing of provisional price lists and there is yet no finalisation of the provisional assessments. 2. According to the counsel, Section 11A of the Central Excises and Salt Act, 1944 (hereinafter called the Act) cannot be invoked in those cases where duties are paid under provisional assessment made under Rule 9B of the Central Excise Rules, 1944 (hereinafter ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally computed except after finalising 'post manufacturing expenses' allowed to be deducted. 4. Another face of the same submission is that the cause of action for invoking Section 11A of the Act would accrue only from the relevent date defined under Section 11A which in case of provisional assessment means the date of adjustment of duty after final assessment under Rule 9B. It is also contended that serious prejudice would be caused as the reward scheme would operate, as a result of which the likelihood of bias would arise. 5. For the reasons recorded in C.W.P. 1039/87, "M/s. Duncans Agro Industries Ltd. v. Union of India and Others", we repel the common contentions. 6. We are, however, not inclined to express any considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med companies for collecting from the whole-sale buyers of their cigarettes, additional and extra amounts over and above the value of the cigarettes shown in the invoices, which were liable to be included in the assessable value or how they have controlled, directed and monitored the recovery of extra amounts etc. 8. There is no inherent lack of jurisdiction on these allegations. Section 11A of the Act says 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 the Act, or the rules made thereunder with intent to evade payment of duty, then show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cie, unrelated to the disputed elements of "post-manufacturing cost" in the controversy before the Calcutta High Court. The provisional assessments and the consequential execution of the bonds could not allow insulation against misrepresentation or fraud or collusion and the consequential evasion of the excise duty in respect of various components or elements not at all offered for calculation of the assessable value. Some of the elements may be overlapping, we do not know and, therefore, have to leave them for investigation and adjudication by the authorities under the Act. May be the provisional assessment is final in respect of some components and others which are the subject matter of the dispute before the Calcutta High Court or as a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that in cases where any duty had not been levied or paid, or had been short-levied or had not been paid by reason of fraud, collusion or any wilful mis-statement or suppression of facts by such person or erroneously refunded etc. the period was five years instead of six months. Section 11-A was inserted by Amendment Act No. 25 of 1978 and came into force on the appointed date i.e. November 17,1980. Further amendments were made in 1985, the words "as if for the words "Central Excise Officer" the words "Collector of Central Excise" were substituted in the proviso to Section 11A (1) after the words "as if. In sub-section (2) of Section 1A for the words "the Assistant Collector of Central Excise" the words "the Assistant Collector for Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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