9911796707
TMI Blog1991 (1) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... peal X X X X Extracts X X X X X X X X Extracts X X X X ..... time. This plea did not find favour with the Excise Authorities and the appellant was required, by order dated 26th August, 1968, to pay to the Central Government, an additional duty of Rs. 1,41,829.11p. This order was challenged by the appellant before the High Court under Article 226 of the Constitution of India. A learned Single Judge of the High Court accepted the contention of the appellant that Rule 10 and not Rule 10A of the Rules was applicable and on this view the order dated 26th August, 1968 was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being made within three months from the date on which the duty or charge was paid or adjusted in the owners' account current, if any, or from the date of making the refund. 10A. Residuary powers for recovery of sums due to Government - Where these Rules do not make any specific provision for the collection of any duty, or of any deficiency in 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 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value, des.c.ription, quality or proof thereof or for non-completion of chemical or other tests and whereas the appellant had requested the Excise Authorities as per Rule 9B of the Rules to make provisional assessment of Excise duty of the goods pending final assessment, the appellant was giving a guarantee to the extent of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the case clearly fell within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not, and in our opinion rightly, subs.c.ribe to the aforesaid finding. Simply because Rule 9B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not ines.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 supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi-judicial process and involved due application of mind to the facts as well as the requirements of law. With regard to the debit entries it was held that the making of such entries was only a mode of collection of tax and even if payment of actual collection of tax could be spoken of a de facto "levy" it was only provisional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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