9911796707
TMI Blog1997 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of show cause notice under Section 11A arises in this case. Even otherwise, we do not find any infirmity in the order of the Tribunal. Appeal dismissed. - 4052-53 of 1988 - - - Dated:- 8-4-1997 - Suhas C. Sen and K.T. Thomas, JJ. [Judgment per : Sen, J.]. - This case is a good illustration of why the High Court should not intervene in revenue matters in exercise of writ jurisdiction where adequate alternative statutory remedies are available. In the instant case, complications have arisen because of the directions given by the Patna High Court on 15-9-1982 after quashing the various notices and orders in course of proceedings under the Central Excise and Salt Act. 2.The appellants are manufacturers of sheet glass which at the material time was chargeable to Central Excise duty on ad valorem basis. The appellants used to file their price lists in accordance with the procedure prescribed by the Central Excise Rules (hereinafter referred to as the 'Rules') and pay duty according to their calculations. The trouble in this case arose with the price list No. 38/1979 which was filed on 4-7-1979. A show cause notice dated 7-7-1979 was issued by the Asstt. Collector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,81,826.87p. for the period from 1-8-1983 to 31-12-1983. 6.The appellant's contention is that these two orders were not preceded by any show cause notice under Section 11A of the Central Excise and Salt Act. This according to the appellants, was mandatory and failure to give such a notice made these two orders ab initio void and of no legal effect. The appeal against the orders of the Assistant Collector was dismissed by the Collector (Appeals). A further appeal was preferred to Customs, Excise and Gold (Control) Appellate Tribunal. The Tribunal did not agree with the assessee's contention that because no show cause notice under Section 11A was given to the appellants by the excise authorities, the orders making demands by the Assistant Collector of Central Excise were void and had to be quashed. 7.Mr. Dave on behalf of the appellants has contended that the demand for duty under the Central Excise Act could only be effected by issuing a show cause notice under Section 11A except in a case where clearance was provisional under Rule 9A in which case, on finalisation of assessment, differential duty could be determined as payable by the assessee. Reliance was placed for this prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereof; (f) in any other case, the date of payment of duty." 11.It was argued that Sections 11A and 11B are similarly worded and the scheme of the two sections is the same. In one case, the assessee can claim refund, in the other, the department can realise tax which was not levied or short-levied. Under Section 11A, the period of limitation has to be calculated from the 'relevant date' as defined. The important point is that this Court recognised that in a self assessment scheme, where the assessee calculated and paid the amount of duty, nothing but a provisional assessment had taken place which was subject to final assessment. The period of limitation in such case will run from the date of making of the final assessment. 12.Mr. Dave drew our attention to the case of Collector of Central Excise, Baroda v. M/s. Kosan Metal Products Ltd., 1988 (38) E.L.T. 573 (S.C.) = (1988) Supp. (1) SCC 135. In that case, brass rods were assessed under Tariff Item 69 during the period from 24-7-1978 to 31-3-1979 and under Tariff Item 26A(1)(a) with effect from 1-4-1979. Thereafter, it was noticed by the Superintendent of Central Excise that the assessee had availed of the incorrect set-of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrent within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise." 16.The assessee is entitled under Rule 173F to determine his liability for copy on the excisable goods manufactured by him and to remove such goods on payment of duty on self assessment in accordance with the provisions laid down in the Rules. But this is only the first step in making of the assessment. The proper officer is empowered to assess the duty on the goods so removed by the assessee and complete the assessment on the return filed by the assessee. A copy of the return so computed by the proper officer has to be sent to the assessee. The duty assessed and paid by the assessee on self assessment will be set-off against the duty assessed by the proper officer. If the duty paid by the proper officer on final assessment is more than the duty determined and paid by the assessee, the assessee has to pay the deficiency by making a debit in the account-current within ten days of the recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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