9911796707
TMI Blog1991 (1) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, business of manufacturing different types of glasswares which were excisable goods under the Act. The appellant used to present A.R. I forms accompanied with price lists of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods. The appellant's office was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized. As a consequence of this search and seizure it transpired that the appellant was maintaining two sets of bills. The bills of one set were those on the basis of which the appellant used to pay excise duty before clearance of the goods and those of the other were such which were never issued to the dealers. In these two sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed. Aggrieved by that order, the respondents preferred an appeal before a Division Bench of the High Court. The judgment of the learned Single Judge was reversed and on the finding that it was a case falling under Rule 10A, the writ petition was dismissed by the judgment under appeal. 2. The only point which has been urged by learned counsel for the appellant in support of this appeal is that the learned Single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and the Division Bench committed an error in reversing his judgment. For the respondents on the other hand, it has been urged that on the facts found by the Division Bench and indeed on the case set up by the appellant itself no exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or sum shall on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify." In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellant's office on 26th September, 1963 it was found that the duty paid by the appellant on the basis of price lists furnished by the appellant at the time of clearance of the goods was deficient, it was a case where duty had been short-levied "through mis-statement as to the quantity, des.c.ription or value of such goods on the part of the owner" as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sum mentioned in the bond for payment of the duties. The learned Single Judge had also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by Excise Authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently any dis.c.repancy was detected or found, the same used to be paid by the appellant. 3. The question as to whether Rule 10 or Rule 10A of the Rules was applicable has to be determined in the background of the procedure which was followed even according to the appellant as indicated above. The legal position that Rule 10A does not apply where the case is cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c.apable, that a final assessment had come into being at that time. In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional and not final. It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it. It was also held that it was the process of adjustment that really determined whether levy was short or complete. It was not a factual or presumed levy which could in a disputed case prove an "assessment". This had to be done by proof of the actual steps taken which constitute assessment. 4. We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacco Co. of India Ltd. (supra) it is not possible to take any exception to the finding of the Division Bench in the judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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