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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5297 OF 2008

M/s. The Bombay Dyeing & Mfg. Co. Ltd.        ..…Appellant(s)

Versus

The Commissioner of Central Excise          ….Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. This appeal is directed against the judgment and order

dated 13.9.2007 passed by the High Court of Judicature at

Bombay in Central Excise Appeal No. 237 of 2006.   Briefly

stated, the appellant  is engaged  in manufacture of cotton and

man­made fabrics.   According to the appellant, the fabric

manufactured by the appellant was not amenable to excise duty

since it was for captive consumption and not to be removed for

the purposes of sale or for consumption as envisaged under Rule

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9 read with Rule 49 of the Central Excise Rules, 1944 (for short,

‘the Rules’).  On this assertion and relying on the decision of the

High Court of Delhi in J.K. Cotton Spinning & Weaving Mills

Co. Ltd. & Ors. vs. Union of India & Ors.1, the appellant filed

two writ petitions under Article 226 of the Constitution of India

before the  High  Court of  Delhi being  Civil  Writ Petition  Nos.

1234/1981 and 1235/1981.  The reliefs claimed in both petitions

are identical except that they pertain to separate periods.   We

may reproduce the reliefs claimed in Writ Petition No.

1235/1981, for the sake of convenience.  The same read thus: ­

“(a) Issue a suitable writ, order or direction declaring that duty of excise is not payable in respect of yarn (Cotton and man made) processed further in the petitioner’s composite mills in the manufacture of fabrics:

(b) Issue writ of certiorari or any other suitable writ, order or direction in the  nature thereof quashing and setting aside the decisions and directives of the Central Board of Excise, respondent No.2, contained in circular letters dated 6.10.1976  (Annexure  A),  24.9.1980  (Annexure  B)  and  to quash the notices dated 23.4.1981  (Annexure C) and all similar notices referred to in the statement (Annexure D), dated 7.1.1981 (Annexure G) and dated 9.3.1981 (Annexure H):

(c) Issue a writ of mandamus or any other appropriate writ, order or direction in the  nature thereof, restraining the respondents from  levying or collecting  duty of excise in respect of yarn obtained by the petitioner at an intermediary stage in its composite mill for further processing in the manufacture of fabrics and to direct the

1 1981 (8) ELT 887 (Del.)

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Board, respondent  No.2, to cancel and/or  withdraw  the decisions and directives contained in circular letters dated 6.10.76 (Annexure  A) and  24.9.80 (Annexure  B) and to direct respondent 3 and 4 to cancel and/or withdraw the notice dated 23.4.1981 (Annexure C), 23.2.81 (Annexure G) and all similar notices referred to in the statement (Annexure D), dated 7.1.1981 (Annexure G) and 9.3.1981 (Annexure  H) and to restrain  defendants 3 and  4 from taking any steps or/proceedings pursuant to and in accordance with the aforesaid directives and notices.  

(d) Issue a writ of prohibition or any other appropriate writ, order or direction in the nature therefore, restraining the respondent from collecting duty of excise on yarn obtained by the petitioner in its composite  mill which is further processed in the manufacture of fabrics.  

(e) Issue appropriate writ, order or direction directing the respondent to refund the amount of duty illegally recovered from the petitioner in respect of yarn obtained in the petitioner’s  composite  mills and further processed  in the manufacture of fabrics for the  period commencing from 15.7.1977 in respect of cellulosic spun yarn and non­ cellulosic spun yarn and from 17.3.1972 and in respect of cotton yarn and from 15.7.77 upto the date of disposal of the  present  writ  petition  and in  particular the  amounts referred to in statement (annexure E) together with interest at the rate  of  12% p.a. and  in the  alternative to  direct Respondents No.3 and 4 to grant the refund as per refund claims dated 13.5.1981 (colly.);

(f) In the alternative and without prejudice to the aforesaid prayers, to  issue a writ of mandamus or any other writ, order or direction in the nature thereof direction the respondent not to collect duty of excise in respect of yarn upon sizing thereof processed in the manufacture of fabrics.  

(g) In the alternative and without prejudice to the aforesaid prayers, issue writ of prohibition or any other writ, order or direction in the nature thereof, restraining the respondents from levying or collecting duty of excise in respect of yarn processed  within the  petitioner’s composite  mills  on the basis of the weight of yarn after sizing thereof.  

(h) To pass such other and further orders as may be deemed just and proper in the facts and circumstances of this case; and

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(i) Award costs of the writ petition in favour of the petitioner.”  

2. During the pendency of the aforementioned writ petitions,

the appellant filed Civil Miscellaneous Petition Nos. 1698/1981

and 1699/1981 in the concerned writ petitions, praying for

interim reliefs.  For the sake of convenience, the reliefs claimed in

Civil Miscellaneous Petition No. 1699/1981 filed in Writ Petition

No. 1235/1981 are reproduced below: ­

“(a) grant order of stay permitting the petitioners forthwith to further process and use cellulose and non­cellulosic spun yarn, man­made filament yarn and cotton yarn in its composite mill in the manufacture of  man­made fabric, cotton fabric and woollen fabric at nil rate of duty and to clear cotton fabrics forthwith upon payment of duty in respect of cotton fabric only (without payment of duty on cotton yarn)  upon the petitioners undertaking to  furnish the requisite bond in Form B­13 Rule 9B supported by a bank guarantee  for  an amount equivalent  to 25% of the differential duty in respect of such yarn within three weeks hereof and to restrain the respondent 3 to 4 from taking any action or proceedings pursuit to the directives of the Board,  respondent No.2  (Annexures A and B to  the writ petition) and notices dated 23.4.1981 (Annexure C to the writ petition), and all similar notices referred to in the Statement  (Annexure D),  dated 7.1.1981  (Annexure G to the Writ  Petition)  and 9.3.1981 (Annexure H to the Writ Petition):

(b) grant exparte ad interim stay in terms of prayer (a) hereinabove : and  

(c) pass such other and further orders as may be deemed just and proper.”

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3.  The High Court of Delhi vide order dated 25.5.1981, while

issuing notice on the said miscellaneous petitions, granted

interim relief in terms of Prayer clause (a) reproduced above.  In

furtherance of the said interim relief, the appellant furnished an

undertaking dated 2/10.3.1983 in order to secure the payment

of differential tax to the Department of  Revenue, Ministry of

Finance (for short, ‘the Department’) in the event of dismissal of

its writ petitions.   The format of that undertaking was in

conformity with the prescribed undertaking in Form B­13

referable to Rule 9B of the Rules, submitted by the assessee in

the case of  provisional assessment.  Later on,  the High Court

modified the interim relief on 14.5.1985.  The relevant portion of

the modified interim relief reads thus: ­

“…there  will  be  no  stay  with regard to future  payments. During the pendency of the Writ Petition, where will be stay in respect of 50% of the disputed amount of duties claimed by the respondents  as  arrears  on the  condition that the applicant furnish Bank Guarantees or renew the Bank Guarantees already furnished and keep it  in force till the disposal of the writ petition. With regard to the balance of 50% of the arrears of duty which is disputed, 25% of it shall be paid within 3 months  from today.  With regard  to the remaining 25%, the parties will pay the same in two equal installments of 12½% each in every succeeding quarter. The 25% payment which is the first payment shall be made on or before 14th August, 1985, the second installment shall be made on or before 14th November, 1985 and the third and

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the last installment to complete the 50% will be paid on or before 20th February, 1986.  

There arrears of disputed duty which are required to be paid is only in respect of unsized yarn. Any duty claimed on sized yarn will not be paid by virtue of this order.  

There will be no duty payable on the sized yarn even for future till disposal of the writ petition.  

If any payments have been made through disputed, the same would be adjusted in accordance with what is provided in the order passed by us today……”

4. Pursuant to the modified interim relief, the appellant

deposited 50% of its liability towards central excise duty in

installments and continued to make future payments.   The writ

petitions  were eventually  disposed  of on  10/12.3.1993 in the

following terms: ­

“Counsel for the parties are agreed that this case is covered by the orders and directions issued by the Supreme Court in Civil Miscellaneous Petitions No.8869 of 1988 and others in Civil Appeals Nos.323 of 1984 and others in Rohit Mills Ltd. v. Union of India, dated 28th April, 1988 and it will be open to the  petitioner to raise such  other contention available to it before the adjudicating authority in response to the show­cause notices.

Accordingly, we dispose of the writ petition in terms of the aforesaid orders of the Supreme Court, which should be read as part of our order. No order as to costs.”

5. Consequent to the disposal of the writ petitions, the

Assistant Collector of Central Excise vide letter dated 26.3.1993

addressed to the appellant, informed the appellant that Section

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11A of the Central Excise Act, 1944 (for short, ‘the Act’) was not

applicable to the facts of the present case.  For, the amount was

secured  by the  bank  guarantee furnished  by the  assessee in

terms of the interim order passed by the High Court of Delhi.  Yet

an opportunity was offered to the appellant to send its response.

The said letter of the Assistant Collector reads as follows: ­

“OFFICE OF THE ASSTT. COLLECTOR OF CENTRAL EXCISE: DIVISION F­I 2ND FLOOR, MADHU INDUS ESTATE: P.B. MARG, WORLI, BOMBAY­13

F.No.FI/FI/V(18)­3/81/1735        Bombay, the 26th March, 1993  

M/s. Bombay Dyeing & Manufacturing Co. Ltd., (spring Mills),  G.D. Ambedkar Road,  Bombay­14.

Gentlemen,  

Sub Delhi High Court CW.P. No.1235/81 M/s. Bombay Dyeing & Mfg. Co. Ltd.

Versus Union of India and OTHERS

Please refer to  various correspondences exchanged  on the above said state subject.  

I  have  been  directed  to inform you  that the  aforesaid case was listed on 12.3.93 before Hon’ble the Chief Justice and Hon’ble Mr. Justice Anil Dev Singh, Delhi High Court, New Delhi.  

The aforesaid case is decided in view of the orders passed by the Supreme Court of India in the case of M/s. Rohit Mills Ltd. (copy attached herewith for your information and for further action please).  

Before  complying the  aforesaid  orders  of the  Supreme Court of India in case of M/s. Rohit Mills Ltd.,  on which

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case the Delhi High Court has disposed of the instant writ petition, this  office  would  like to  bring to  your  notice  as under:

‘As regards applicability of Section 11A and encashment of Bank Guarantee,  it is pertinent to refer to the Hon’ble Supreme Court’s order in Writ Petition No.848 of 1984 filed by M/s. Bhilwara Processor Ltd.  and others,  wherein the issue was in dispute i.e., whether department can enforce Bank Guarantees executed in terms of Court’s order without issuing  Show Cause cum Demand  Notice under section 11A. In the above case, also, an interim order was passed on 20.2.84 by the Hon’ble Supreme Court of India restraining the department from levying and recovering the disputed portion of the duty of excise on the condition that petitioners  of the  case  shall furnish  the  bank guarantee. The Bank guarantee  was  furnished and  the  writ  petition was dismissed by the Hon’ble Supreme Court of India on 4.11.88. Thereafter the department asked the petitioners to take steps to enforce the Bank guarantee. Aggrieved with this action, they filed a Miscellaneous Writ Petition before Supreme Court of India stating that since no Show Cause cum Demand Notice was issued under Section 11A, no recovery beyond the period of 6 months can be effected. The above petition of M/s. Bhilwara Processors Ltd. was dismissed by Hon’ble Supreme Court of India by its order dated 29.11.88 (reported in Judgment Today Vol. (4) November Part 1988 (83) 330).  

The similar order was passed by Rajasthan High Court vide order dt. 9.12.1988 in C.W.P. No.4441/88. In this case under similar circumstances,  M/s. Modern Suitings also made the same  grievances  before  Rajasthan  High  Court. The Hon’ble Rajasthan High Court placing reliance on the order dt. 29.11.1988 passed by the Hon’ble Supreme Court of India in the case of M/s. Bhilwara Processors Ltd. observed as under:­

“Be that as it may, we are of the opinion that once orders of a Court, stay order is sought in respect of recovery of Excise Duty or any other duty for that matter and the stay order is conditional, on furnishing Bank Guarantee, if ultimately the writ petition is dismissed and stay order is vacated, the Bank guarantee can become encashable immediately. Therefore, we need not go into this question as to whether Section 11A is or is not attracted, we are of the opinion that because the  petitioner furnished the

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Bank guarantee, makes secured a stay order which was conditional as a result of which levy and recovery was stayed  once  writ  petition  has  been dismissed and  the stay order has been dismissed ……. The Bank guarantee has  become encashable, neither it  will be  proper  nor equitable for this Court to say or make an order that the Bank guarantee should not be encashed…………..”

With  the  above observation,  we dismiss the writ petition with no order as to cost.”

In view of the facts of the case discussed above, the  Section  11A is  not applicable in the instant case since the amount was secured by the Bank guarantee furnished by the assessee in terms of the stay order of Hon’ble Delhi High Court.”

However, complying the orders given  by the  Supreme Court of India in case of M/s. Rohit Mills Ltd., this office would like to know whether petitioner desires Show Cause cum Demand Notice  to  be  issued by the respondent i.e., Union of India, for the recovery of outstanding dues. If yes, the same may be confirmed by 31.3.93 so as to enable this office to take the action as directed by the Hon’ble Supreme Court of India in case of M/s. Rohit Mills Ltd. However, it will be nothing but the postponement of payment of Central Excise Duty, which is legitimate right of the Union of India, which was deprived by you by filing the instant writ petition, since  1981. If  no, the consent letter should  be submitted to this office for encashment of Bank guarantees, as early as possible.  

Your early reply is awaited in this matter.  

Yours faithfully,  Sd/­ Illegible

(C.K. NIRBHAVANE) ASSISTANT COLLECTOR  CENTRAL EXCISE DN. FI

BOMBAY­I”

6. The appellant in its response sent on 11.5.1993, asserted

that the Show Cause Notice under Section 11A of the Act was

mandatory and moreso in light of the decision of this Court dated

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28.4.1988  in  Rohit Mills Ltd. & Ors. vs. Union of India &

Ors.2  The said communication reads thus: ­

“OUR RE. NO. SM/E­1                   11th May, 1993

The Assistant Collector of Central Excise,  Division F­1, IInd Floor,  Madhu Industrial Estate,  P.B. Marg, Worli, Bombay­400013.

Dear Sir,

 Your Ref. F.No.IV/CL­VI/30­84/FI/93/2295 Dated 2nd April, 1993.

 Sub: Delhi High Court Writ Petition No.1235/1981 Bombay Dyeing & Mfg. Co. Ltd.  (Spring Mill Unit) Vs. UOI & Ors.

1. This has reference to your above letter whereby you have intimated the date of hearing for finalizing the classification list in respect  of  cotton yarn and man made Yarn.  Your attention is also drawn to your earlier letter F.No.FI/PI/V(18)­3/81/1705 dated 26.3.1993, whereby you desired us to intimate whether your would like a show cause notice to be issued u/s 11A of the Act.  

2. We would draw your kind attention to the order passed by the Hon’ble High Court of Delhi dated 10.3.1993 whereby the above writ petition was disposed of on the basis of the order passed by the Hon’ble Supreme Court in the case of Rohit Mills Ltd. For your ready reference, we enclose herewith a copy of the aforesaid order passed in the case of Rohit Mills.  

3. The directions issued by the Hon’ble High Court in the above matter on the basis of the directions issued as in the case of Rohit Mills contemplate that adjudication has now to be done pursuant to a Notice under Section 11A of the Act. It is specifically directed that in cases where such notice  has  been  not issued, the  Assistant  Collector  may issue such notice which should not go beyond 6 months. In

2 1988 (18) ECR 17 SC

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the present case, no show cause notice under Section 11A has been issued and as such, as per the direction of the Hon’ble Supreme Court in the case of Rohit Mills Ltd., which direction also forms part of the order of the Hon’ble High Court  disposing also  forms part  of the order  of the Hon’ble  High  Court disposing of the above  writ petition, your are now required to issue a Notice under Section 11A of the Act. On receiving such a notice, we shall raise our objections thereto and we reserve our right to do so.  

4. You have kindly intimated that the hearing in the above matter  is now fixed for 11.5.1993. We may mention here that before any hearing  is taken up a show cause notice under Section 11A will have to be first issued and an opportunity be given to us to reply to the Notice. In this connection we may also mention that as per the orders of the Hon’ble High Court dated 10.3.1993, we have been given specific liberty to raise such other contentions as are available, before the adjudicating authority in respect to the show cause notice. We reserve our right to raise such contention as may be advised, in  reply to the said show cause notice.  

5. Although our contentions would be raised after the show cause notice under Section 11A is  issued, we may clarify here that, in  any event,  no  duty  of excise is  payable in respect of yarn  after it is sized. In  other  words,  duty  of excise is not payable on the basis of the weight of the sized yarn. This has been clearly held in several decisions including the decision of the Hon’ble Supreme Court in the case of J.K. Cotton Spg. & Wvg. Mills Co. Ltd. and another vs. UOI (1987 (32) ELT 234). The attempt earlier made to levy duty of excise at the stage after yarn is sized, is patently illegal in view of the aforesaid decisions. The reference in your letter to provisional assessment is wholly irrelevant. In  the  first  place,  as per the  directions of the Hon’ble High Court, adjudication has now to be done on the basis of show cause notice under Section 11A of the Act. Secondly for the reason that the provisionally if any, was in relation to dutiablity of yarn at the stage and the condition after sizing and did not relate to unsized yarn. In any event, the assessment has now to be done in terms of the directions of the Hon’ble High Court, after issuing a show cause notice under Section 11A of the Act.   The adjudication can only be gone in accordance with the directions of the Hon’ble High Court.

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6. We may mention here that although our contentions would be raised as and when a show cause notice is received,  we  may indicate that in  any  event,  no  duty  of excise is  payable in respect of the yarn  obtained  at the intermediate  stage  which is further  processed  within the factory, since it is not obtained at that stage in a marketable condition. We have already paid certain amounts towards duty of excise in respect of such yarn under protest during the pendency of the writ petition and upon decision of this issue, we would be entitled to claim refund thereof.  

7. Further contentions would be taken in reply to the show cause notice, which may be issued as per the directions of the Hon’ble Supreme Court. Under these circumstances, we would request you to first issue a show cause notice under Section 11A of the Act and then give us an opportunity to file a reply thereto and a hearing in that respect. The hearing already fixed for 11th  May, 1993 may kindly be adjourned since the matter cannot be adjudicated without issuing a show cause notice under Section 11A of the Act as per the directions of the Hon’ble High Court.  

Yours faithfully,  Sd/­ Illegible  [K.R. NAYAK] MANAGER”  

7. The Assistant Collector of Excise vide order­in­original

dated 19.8.1993 noted that the appellant had filed classified lists

for its products which had been approved provisionally and the

appellant had been directed to pay excise duty.   He also noted

the objection of the appellant about non­issue of a Show Cause

Notice under Section 11A of the Act.   However, he proceeded to

finalize the classification  lists  by  noting that the  classification

lists filed earlier by the assessee were treated as provisional.

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8. In furtherance of the said order of the Assistant Collector,

the Range Superintendent sent a letter dated 27.9.1993 to the

appellant stating that all the RT­12 returns for the period of May,

1981 to May, 1985 for the items 18A, 18­III and 18E which had

been assessed provisionally by the then Range Superintendent

are assessed finally.  By the same communication,  he called

upon the appellant to pay an amount of Rs.35,92,234.67 (Rupees

thirty five lakhs ninety two thousand two hundred thirty  four

and sixty seven paise only) pursuant to the order dated

14.5.1985 passed by the High Court of Delhi.  This was followed

by a notice dated 7.10.1993 from the Assistant Collector of

Central Excise addressed to the appellant reiterating the position

that pursuant to the interim order passed by the High Court of

Delhi,  provisional  assessments  had been  made  and necessary

endorsements to that effect were made on the classification lists,

monthly RT­12 returns, etc.   Further, the appellant was obliged

to make good the arrears of disputed duty amounting to

Rs.35,96,235/­ (Rupees thirty five lakhs ninety six thousand two

hundred thirty five only) for the period starting from 25.5.1981 to

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13.5.1985, which had become payable.  The appellant was called

upon to pay the said amount within ten days, failing which the

Department would take necessary steps to enforce the bank

guarantees and recover the dues from the appellant.

9. Subsequent to the above notice, an opportunity of personal

hearing was also given to the appellant on 19/20.10.1993 with

respect to the recovery of dues.   It appears that during the

hearing, the appellant reiterated its stand that the Show Cause

Notice under Section 11A of the Act was essential, including in

terms of the order of the High Court of Delhi, dated

10/12.3.1993.   The Assistant Collector of Excise, however, vide

order­in­original dated 7/15.12.1993, confirmed the demand of

excise duty.   He held that in the present case, the duty liability

itself  was  in dispute and the assessment could be made  final

only when the question of duty liability was decided by the High

Court of Delhi, and once that issue was resolved, the question of

issuing notice under Section 11A of the Act does not arise,

especially when the appellant itself had voluntarily executed B­

13 bonds and the assessments were treated as provisional, as

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evinced from the endorsements on monthly RT­12 returns in that

behalf.    

10. The appellant carried the matter in appeal before the

Commissioner of Central Excise (Appeals), who in turn, rejected

the appeal vide order­in­appeal dated 31.5.2000.   The

Commissioner of Central Excise (Appeals) also upheld the

demand for excise duty and rejected the plea taken by the

appellant regarding the necessity to issue a Show Cause Notice

under Section 11A of the Act.

11. The appellant then unsuccessfully carried the matter in

appeal being Appeal No. E/2747/2000 before the Customs,

Excise and Service Tax Appellate Tribunal (for short, ‘the

CESTAT’).  That appeal was dismissed on 22.2.2006.   Against

that decision, the appellant filed Central Excise Appeal No.

237/2006 before the High Court of Judicature at Bombay under

Section 35­G of the Act, which was eventually dismissed on

13.9.2007  following the  decision  of the  Division Bench of the

same High Court dated 7.9.2007 in First Appeal No. 2597/2005

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titled as  The Jam Shri Ranjitsinghji Spg. & Wvg. Mills Co.

Ltd. & Anr. vs. Union of India & Ors.3.

12. To complete the narration of facts, it is relevant to mention

that the relied upon decision was assailed before this Court in

Civil Appeal No. 1551/2008 by the assessee therein, which was

summarily dismissed on 7.3.2008, presumably at the admission

stage.

13. The sum and substance of the view taken in the relied upon

judgment, which involved similar facts, is that in a case such as

this where B­13 bonds have been executed by the assessee and

clear endorsement is made on the monthly RT­12 returns that it

is  a case of  provisional  assessment, the question of issuing a

Show Cause Notice under Section 11A of the Act does not arise.

The assessee in that  case  had  relied  on  the  decisions of this

Court, which have been distinguished as inapplicable to the fact

situation of the case under consideration.  We shall advert to the

detailed reasons noted in this decision a little later.

3 2007 (109) Bom LR 2167

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14. We may now advert to the issues raised by the appellant in

the present appeal.  According to the appellant,  primarily two

questions arise for consideration, which are as follows: ­

“1) Whether  the demand  for  Central  Excise  for the period 25.05.1981 to 14.05.1985, as raised by the department, is barred by limitation?

This question in turn is dependent upon the issue whether the assessment in this case could be said to be provisional assessment.  

2) Could the respondent authorities have ignored the binding directions of the Hon’ble High Court of Delhi vide its Order dated 12.03.1993 to hold that no Show Cause Notice (SCN) was required in the present case as the assessments in question were provisional?”

15. It is urged that the purport of the order dated 10/12.3.1993

passed by the High Court of Delhi, while disposing of the writ

petitions filed by the appellant clearly obliged the Department to

issue a Show Cause Notice under Section 11A of the Act and to

proceed  against the  appellant  only in the  manner  permissible

under the said provision in light of the dictum of this Court in

Rohit Mills Ltd. (supra).   It is urged that the dictum in Rohit

Mills Ltd. (supra)  formed part of the subject order of the High

Court of  Delhi and  for  which  reason, it  was  not open  to the

Department to take a contrary stand.   The approach of the

authorities in not complying with the said obligation cannot

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stand the test of judicial  scrutiny.  On the other hand,  if the

authorities were to follow the direction given by the High Court of

Delhi, the demand for central excise duty for the period starting

from 25.5.1981 to 13/14.5.1985 would be clearly barred by

limitation.  It is then urged that had the authorities adopted the

route of provisional assessment, they were obliged to expressly

state that position by passing an order.  In the present case, no

such order has been passed by the authorities.  To buttress the

argument that it is incumbent upon the authorities to pass

formal specific order directing provisional assessment, reliance is

placed on the circular issued by the Ministry of Finance

(Department of Revenue) bearing number 26/1989 dated

24.4.1989.   It is urged that the fact that the appellant  had

executed B­13 bonds or the monthly RT­12 returns purportedly

treated as provisional assessment, can never be held against the

appellant especially in light of the observation of the High Court

of Delhi that a formal notice be issued to the appellant, which

was the basis for disposing of the writ petitions.   In support of

the above arguments, the appellant would rely on decisions of

this Court in  Rohit Mills Ltd. (supra);  The Bhopal Sugar

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Industries Ltd. vs. The Income Tax Officer, Bhopal4; R.B.F.

Rig Corporation, Mumbai vs. Commissioner of Customs

(Imports), Mumbai5; Metal Forgings & Anr. vs. Union of India

& Ors.6; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs.

Collector of Central Excise7;  Commissioner of Central

Excise, Calcutta vs. Hindustan National Glass & Industries

Ltd.8;  Kalabharati Advertising vs. Hemant Vimalnath

Narichania & Ors.9;  Jagmittar Sain Bhagat &  Ors.  vs.

Director,  Health  Services,  Haryana & Ors.10;  and  Coastal

Gases  and  Chemicals Pvt. Ltd. vs.  Assistant  Collector of

Central Excise, Visakhapatnam & Ors.11.

16. The respondent, on the other hand, supported the reasons

recorded  by the  authorities/Tribunal and  would contend that

being a case of provisional assessment, the question of issuing a

4 1961 (1) SCR 474 5 (2011) 3 SCC 573 6 (2003) 2 SCC 36 7 (1998) 3 SCC 540 8 (2005) 3 SCC 489 9 (2010) 9 SCC 437 10 (2013) 10 SCC 136 11 (1997) 7 SCC 223

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Show Cause Notice to the appellant under Section 11A of the Act

does not arise.   Whereas, the authorities acted as per the

mandate of law and proceeded to pass final assessment orders

after the disposal of writ petitions by the High Court of Delhi,

and before passing such orders, opportunity of hearing was given

to the appellant.   According to the respondent, the order dated

10/12.3.1993 of the High  Court of  Delhi did  not create any

impediment for the authorities to proceed against the appellant

in accordance with law.   At best, the tenor of the order would

suggest that if a Show Cause Notice is required to be issued and

has not been so  issued, authorities were  free to  issue such a

notice and take decision thereon, after giving opportunity of

hearing to the assessee.  No more and no less.  The High Court of

Delhi could not have issued any other direction against the

respondent,  which  would be in the  nature of prohibiting the

statutory functionary from discharging its statutory functions

and obligations nor to absolve the appellant of its statutory

obligation to pay excise duty, which otherwise was payable by the

appellant  but for filing  of the  writ  petitions.  Admittedly, the

interim protection given to the appellant was conditional and the

21

appellant, acting  upon  the same,  had  submitted  B­13 bonds,

which pre­supposes that it was a case of provisional assessment

and could be proceeded further as per law, after the disposal of

the writ petitions.  In that, it was not a case referable to Section

11A of the Act.  The respondent is placing heavy reliance on the

decision of the Division Bench of the High Court of Judicature at

Bombay in the  case  of  The Jam Shri  Ranjitsinghji (supra),

which has been upheld by this Court by dismissing Civil Appeal

No. 1551/2008 on 7.3.2008.  It  is urged that the facts of the

relied upon case and the present case are almost similar, if not

identical.   According to the respondent, the appeal is devoid of

merits and the same be dismissed.

17. We have heard Mr. Kavin Gulati, learned senior counsel for

the appellant and Mr. A.K. Sanghi, learned senior counsel for the

respondent.

18. After cogitating over the rival submissions, the core issue

that requires to be immediately addressed is about the purport of

the order passed by the High Court of Delhi dated 10/12.3.1993,

while disposing of the writ petitions filed by the appellant.   The

said order will have to be understood in the context of the stand

22

taken by the appellant before the High Court.   In the said writ

petitions, the appellant had asserted that the fabric

manufactured by the appellant was not amenable to excise duty

as it was not removed from the premises within the meaning of

Rules 9 and 49 of the Rules.   Indisputably, the purport of the

stated Rules has been finally answered by this Court in M/s. J.K.

Cotton Spinning and Weaving Mills Ltd. & Anr. vs. Union of

India & Ors.12 after resolving the conflicting opinions of different

High Courts  including of the High Court of  Delhi.  The stand

taken by the appellant in the writ petition has been negatived by

this Court, in the said decision.   Thus, the question relating to

liability to  pay  excise  duty  was  not  and could  not  have  been

disputed by the appellant at least after this decision.

Concededly, the  appellant  had filed  writ petitions taking clue

from the exposition of the High Court of Delhi in  J.K. Cotton

Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1).

That view has been finally dealt with by this Court in M/s. J.K.

Cotton Spinning and Weaving Mills  Ltd. (supra @ F.N.12),

fastening liability on the assessee to pay excise duty.

12 1987 (Supp) SCC 350

23

19. Additionally, it may be apposite to underscore the purport

of the interim conditional stay granted by the High Court of Delhi

whilst entertaining the writ petitions filed by the appellant.

Initially, vide order dated 25.5.1981, interim relief was granted in

terms of the Prayer clause (a) of Civil Miscellaneous Petition No.

1699/1981, reproduced hitherto.   By this Prayer clause, the

appellant had expressed its willingness to file undertaking/bond

in Form B­13 referable to Rule 9B supported by bank guarantee

for an amount equivalent to specified differential duty in respect

of the yarn in question.  The said interim relief was then modified

on 14.5.1985.   The fact remains that the appellant voluntarily

furnished requisite  bonds in  Form B­13 referable to  Rule  9B

supported by bank guarantee for equivalent amount of the

differential duty.   It is not an undertaking filed pursuant to the

order of the Court.   Concededly, the order disposing of the writ

petitions does not absolve the appellant from the said bonds; nor

the endorsements made thereon and on the monthly RT­12

returns, indicating that it  was  a  provisional  assessment  have

been ordered to be effaced. Suffice it to observe that the order

dated 10/12.3.1993 passed by the High Court of Delhi, disposing

24

of the writ petitions filed by the appellant in no way extricate the

appellant from the process to which the appellant had voluntarily

submitted itself at its own volition, namely, under Rule 9B of the

Rules.  Thus, it was not a case of duty not levied or not paid or

short­levied or short­paid.  The understanding of the parties was

absolutely clear that the appellant was liable to pay excise duty,

but for the exposition of the High Court of Delhi in J.K. Cotton

Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1).

Understood thus, the appellant is obliged to fulfill its statutory

obligations including those arising from the undertaking/bonds

in Form B­13 and cannot resile from the process to which it had

submitted itself without any demur, namely under Rule 9B of the

Rules.

20. Indeed, the High Court of Delhi while disposing of the writ

petitions vide order  dated  10/12.3.1993,  had  adverted to the

decision of  this Court  in  Rohit Mills Ltd.  (supra).  On a fair

reading of that decision, it is obvious that the Court dealt with

two situations referred to therein.   First,  where  Show  Cause

Notices under Section 11A of the Act have been served and the

claim does not cover any period beyond six months from the date

25

of  receipt of  the notices. Second, where there  is dispute as to

whether the notice under Section 11A had been issued or not.  In

the present case, none of the above is attracted; and for the same

reason the exposition in paragraphs 30 to 33 of M/s. J.K. Cotton

Spinning and Weaving Mills Ltd. (supra @ F.N.12), on which

reliance has been placed by the appellant, would be of no avail to

the appellant.

21. Section 11A of the Act as applicable at the relevant time,

would apply to cases of recovery of duties not levied or not paid

or short­levied or short­paid etc.   The Section, as applicable at

the relevant time, read thus: ­ “11A. Recovery of duties not levied or not paid or short­ levied or short­paid or erroneously refunded. ­

(1) When any duty of  excise has not  been levied or paid or has been short­levied or short­paid or erroneously refunded,  whether  or  not  such non­levy  or  non­payment, short­levy  or short  payment  or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short­levied or short­paid 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 short­levied or short­paid or erroneously refunded by reason of fraud, collusion or any wilful mis­statement or suppression of facts, or

26

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 sub­section shall have effect, as if for the words one year, the words “five years” were substituted: Explanation .—Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be.

(1A) When any duty of  excise has not  been levied or paid or has been short­levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts,  or  contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub­section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty­five per cent. of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice.

(2) Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub­section  (1),  determine the amount of duty of excise due from such person (not being in excess of the amount specified in the  notice) and thereupon such person shall pay the amount so determined:  

Provided that if such person has paid the duty in full together with,  interest and penalty under sub­section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub­section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA,  be  deemed  to  be  conclusive  as to the  matters stated therein:  

Provided further that, if such person has paid duty in part, interest and penalty under sub­section (1A), the Central Excise Officer, shall  determine the amount of duty or  interest not being in excess of the amount partly due from such person.

(2A) Where any  notice  has  been  served on  a  person under sub­section (1), the Central Excise Officer,—

27

(a)  in case any duty of excise has not been levied or paid or has been short­levied or short­paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement 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, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and

(b)  in any other case,  where  it is  possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short­levied or short­paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub­ section (1).

(2B)  Where any duty or excise has not been levied or paid or has been short­levied or short­paid or erroneously refunded,  the person, chargeable with the duty,  may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer  before service of notice on him under sub­ section (1)  in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub­ section (1) in respect of the duty so paid:  

Provided that the Central Excise Officer may determine the  amount  of short payment of  duty, if any, which in his opinion has not been paid by such person and then, the  Central  Excise  Officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” referred to in sub­ section (1) shall be counted from the date of receipt of such information of payment.  

Explanation 1. —Nothing contained in this sub­ section shall apply in a case where the duty was not levied or was not paid or was short­levied or was short­paid or was erroneously refunded by reason of fraud, collusion or any wilful mis­statement 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.

28

Explanation 2. —For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub­section and also on the amount  of  short­payment  of duty, if any, as may be determined by the Central Excise Officer, but for this sub­section.

Explanation 3 .—For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of duty under this sub­section and interest thereon.

(2C)  The provisions of sub­section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.

(3)  For the purposes of this section—

(i)  “refund”  includes rebate of duty of  excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(ii) “relevant date” means,—

(a)  in  the case of  excisable  goods on which duty  of excise has not  been levied or paid or has been short­ levied or short­paid—

(A)  where under the rules made under this Act a periodical return, showing particulars of the duty paid  on  the  excisable  goods removed during  the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed;

(B)  where  no  periodical return  as aforesaid is filed, the last date on which such return is to be filed under the said rules;

(C)  in any other case, the  date on  which the duty is to be paid under this Act or the rules made thereunder;

29

(b)  in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;

(c) in  the case of  excisable  goods on which duty  of excise has been erroneously refunded, the date of such refund.”

22. The case at hand, however, would come within the

dispensation predicated by Rule  9B of the Rules,  which deals

with provisional assessment to duty.  The same reads thus:­

“Rule 9B. Provisional assessment to duty.­  (1) Notwithstanding anything contained in these rules,­

(a) where the proper officer is satisfied that an assessee is unable to produce any document or furnish any information necessary for the assessment of duty on any excisable goods; or  

(b) where the proper officer deems it  necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon; or  

(c) where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further inquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal) for assessing the duty;

the proper officer may, either on a written request made by the  assessee  or on  his  own accord,  direct that the  duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally  at  such  rate  or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in

30

such amount, or under such conditions as the proper officer deems fit, binding  himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed.

(2) xxx xxx xxx

(3) The Collector may permit the assessee  to enter  into a general bond in the proper form with such surety or sufficient security in such amount or under such conditions as the Collector approves for assessment of any goods provisionally from time to time:

Provided that, in the event of  death, insolvency or insufficiency of the surety or where the amount of the bond is inadequate, the Collector may in his discretion demand a fresh bond and may, if the security furnished for a bond is not adequate, demand additional security.  

(4) The goods provisionally assessed under sub­rule (1) may be  cleared for  home consumption  or export in the  same manner as the goods which are not so assessed.  

(5) When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally  assessed shall  be  adjusted against the  duty finally assessed, and if the duty provisionally assessed falls short  of,  or is  in excess of the duty  finally assessed, the assessee, shall pay the deficiency or be entitled to a refund as the case may be.”

23. Indisputably, the  appellant  voluntarily  executed bonds  in

Form B­13 referable to Rule 9B of the Rules and also furnished

bank guarantee for an amount equivalent to the differential

amount of duty in respect of the fabric in question.   The

authorities have made endorsements on the bonds and on the

monthly RT­12 returns filed by the assessee, indicating that it

was a case of provisional assessment.  Having submitted to that

31

process, it is not open to the appellant to urge that an express

order of provisional assessment has not been passed by the

authorities.

24.  Be that  as it  may, the stand taken  by the  parties  as

recorded in the order dated 10/12.3.1993, is limited to accepting

the fact that if notice is required to be given, the same will be

given and  in  that  case  it  will  be open to the appellant to file

response thereto and further, the authorities would take decision

after giving opportunity to the assessee.   Nothing more can be

read into the order dated 10/12.3.1993 passed by the High

Court of Delhi.  It is certainly not an order to undo the obligation

accepted by the assessee by voluntarily executing the bonds in

the prescribed format, namely, Form B­13 referable to Rule 9B of

the Rules ­ to treat the process as provisional assessment until

the  disposal  of the  writ  petitions.   It is  also  noticed  that the

authorities have later on passed the final order after the disposal

of the writ petitions.

25. A priori, the authorities have not violated any stipulation or

direction contained in the order dated 10/12.3.1993 passed by

32

the High Court of Delhi and for having proceeded in accordance

with law for the period between 25.5.1981 to 13/14.5.1985.   

26. Reverting to the decision of the Division Bench of the High

Court of Judicature at Bombay in The Jam Shri Ranjitsinghji

(supra),  similar argument was considered and the High Court,

after  detailed  analysis, concluded that in  a  case  such  as the

present one, it is not open to the assessee to insist for a notice

under Section 11A of the Act, which has no bearing in cases of

provisional assessment.   The  High Court of Judicature at

Bombay, while dealing with similar arguments, observed thus:­

“33. The question, therefore, to be considered is, firstly, whether circumstances for making provisional assessment existed in the present case and secondly, whether a provisional assessment order was made before clearance of the yarn for captive consumption?

34. With reference to the first contention, the argument of the appellant is that none of the circumstances for making provisional assessment set out in Rule 9B existed in the present case. Moreover, classification list and the price  list  were already approved, and therefore, there was no scope for making provisional assessment. There is no merit in this contention because under Rule 9­B(1)(c) of the 1944 Rules, even after the assessee has produced all the necessary documents and furnished full information for the assessment of duty it was open to the assessing officer to make  provisional assessment  either  on  a  written request made  by the assessee or if the  proper officer deemed it necessary to make further inquiry. In the present case, admittedly there  was a  dispute  pending  before the  Delhi High Court regarding the excisability of the yarn cleared for

33

captive consumption. Pending final decision of the  Delhi High Court, it was open to the appellant to seek and to the proper officer to allow clearance of yarn for captive consumption on provisional  assessment  basis. In  fact, in the B­13 Bond it is recorded that the appellant had sought provisional assessment. Even if the contention of the appellant that the B­13 Bond was executed at the instance of the excise authorities, is accepted, in view of the fact that a dispute was pending before the Delhi High Court, it was open to the proper officer to insist on clearing the yarn for captive consumption on provisional assessment basis.  

35. The next question to be considered is, whether a provisional assessment order was in fact made before clearance  of yarn  for captive  consumption on provisional assessment basis? It is not in dispute that during the period from May, 1981 to May, 1984 the appellant had cleared the yarn for captive consumption by executing B­13 Bond which is applicable to  provisionally assessed  goods. It is pertinent to note that the Delhi High Court by its interim order had not directed the appellant to execute B­13 Bond. Apart from B­13 Bond, there are various  types  of  Bonds specified in Appendix I to the 1944 Rules, which could be executed by the appellant. The fact that the appellant claims to have executed the B­13 Bond at the instance of the revenue clearly shows that as per the directions given by the proper officer, the clearances have been effected on provisional assessment basis by executing B­13 Bond.  

36. It is not the case of the appellant that B­13 bond was executed inadvertently or by mistake. Therefore, having consciously cleared the yarn for captive consumption  on provisional  assessment  basis  by  executing  B­13 Bond as directed by the excise authorities, it is not open to the appellant to contend that there was no order/directions to clear the yarn on provisional assessment basis.”

27. The decisions of this Court, to which our attention has been

invited by the learned counsel for the appellant, have been

considered by the  High Court  of  Judicature  at  Bombay.  The

High Court rightly observed that the said decisions have no

34

application to case of provisional assessment followed by a final

assessment.   While dealing with those decisions, the Court

observed thus:­

“39. At the outset, it may be noted that the observations made by the Apex Court in all the above cases regarding the issuance of notice under Section 11­A of the 1944 Act was in the context of the excise duty that became payable on account of the Apex Court upholding the validity of the amendment to Rule 9 and 49 of the 1944 Rules with retrospective effect from 28.2.1944. Obviously, the said observations were meant to apply to cases where the final assessments were already made and not in respect of cases where the assessments were provisional, because duty liability is determined only at the time of final assessment. In other words, what is held in all the above cases is that, in spite of the retrospective amendment to Rule 9 and 49 is upheld, where the assessments are already finalised the duty under the amended Rule 9 and 49 can be recovered only by issuing notice under Section 11A of the 1944 Act.  

40. This is evident from the fact that in the case of J.K. Cotton  Mills (supra) in respect  of the  clearances  effected during the pendency of the dispute, there was no direction to clear the goods on provisional assessment basis. In that case, neither the goods were cleared by executing B­13 Bond nor there were any endorsements made on the RT­12 returns to the effect that the assessments were provisional. Moreover, in the show cause notice issued by the revenue it was not even averred that the goods were cleared on provisional assessment basis. In fact, Assistant Collector in that case treated the assessments as provisional solely on the premise that the matter was subjudice and the basic argument of the revenue was that the stay granted by the Delhi  High Court virtually amounted to stay of  service of notice under Section 11­A of the Excise Act. In the facts of that case, where the assessments had attained finality and where there was no evidence whatsoever to establish that the clearances were effected on provisional assessment basis, the Apex Court held that in the absence of an express order of provisional assessment made under Rule 9B, the assessments cannot be treated as provisional.”

35

28. As noticed earlier, this decision of the  High Court of

Judicature at Bombay was assailed by the assessee before this

Court by way of Civil Appeal No. 1551/2008, which came to be

summarily dismissed on 7.3.2008.  We are conscious of the fact

that this Court had summarily dismissed the said appeal.

Nevertheless, the view expressed by the High Court of Judicature

at Bombay, as reproduced above, commends to us.

29. The appellant had placed emphasis on the decision in The

Bhopal Sugar Industries Ltd. (supra)  and  R.B.F. Rig

Corporation, Mumbai (supra)  to contend that the Department

cannot be permitted to take contrary position than the direction

given by the  High Court  of  Delhi.  For the  reasons indicated

hitherto, in our opinion, the basis of this submission is ill­

founded.  The authorities have not been nor could be prohibited

by the High Court of Delhi from proceeding with the matter in

accordance with law.  In the present case, all that the authorities

have done is to follow the procedure consequent to provisional

assessment, by passing a final order and raising demand on the

36

basis of that order.  The appellant, as a matter of fact, in terms of

the conditional interim order is obliged to discharge its obligation

in terms of the bonds executed in Form B­13 and the monthly

RT­12 returns filed from time to time for the relevant period.

30. It is  not  necessary for this  Court to  dilate  on the  other

observations in the decision of the  High Court of Judicature at

Bombay in The Jam Shri Ranjitsinghji (supra).  For the same

reason, it is not necessary for us to deal with the exposition in

Metal Forgings (supra).  That decision has been pressed into

service to assail the finding of the Commissioner of Central

Excise (Appeals),  who  had  observed that the order  passed to

finalize the assessment  based on the  RT­12 returns itself be

treated as  Show  Cause  Notice.   It is not necessary to dilate

further on this aspect.

31. Similarly, the exposition of this Court  in  Metal Forgings

(supra)  and  Hindustan National Glass & Industries Ltd.

(supra)  to  urge that  specific  order  was required  to  be  passed

before an assessment is treated as a provisional assessment, will

be of no avail considering the execution of bonds in Form B­13

by the appellant­assessee at its own volition, which is referable to

37

provisional assessment procedure under Rule 9B of the Rules.

Once  the  appellant  submitted  itself to that  procedure  without

any demur pending disposal of the writ petitions, it is not open to

later on resile therefrom.  Permitting the assessee to do so, would

inevitably  result in  giving undue advantage and  favour  to the

assessee, who had invoked the remedy under Article 226 of the

Constitution of India and sought interim protection on offering to

execute bonds in Form B­13 as is noted in the Prayer clause (a)

of the civil miscellaneous petition(s).   For the same reason, the

circular issued by the Government of India pressed into service

will  be of no avail  to the appellant.  Further, the decisions in

Kalabharati Advertising (supra) and Jagmittar Sain Bhagat

(supra)  will also be of no avail to the appellant.   For, the

appellant had voluntarily executed the bonds and also filed

monthly RT­12 returns, on which endorsement had been made

indicative of being a provisional assessment.

32. Taking overall view of the matter, we are of the considered

opinion that the appellant cannot be allowed to approbate and

reprobate ­ for inviting the High Court of Delhi to pass interim

order stipulating that the appellant would execute bonds in Form

38

B­13 referable to Rule 9B of the Rules and continue to file

monthly RT­12 returns from time to time, on which

endorsements  have  been  made indicating that it is  a  case  of

provisional assessment.  The appellant cannot now be permitted

to urge that it had not submitted to the process of provisional

assessment as such for lack of a specific order of the concerned

authority in that behalf.  The order passed by the High Court of

Delhi on  10/12.3.1993,  will  have to  be  understood in  proper

perspective and not to give undue advantage to or bestow favour

on the appellant and thereby deprive the legitimate State

exchequer.

33. Resultantly, this appeal deserves to be dismissed and the

same is accordingly dismissed with no order as to costs.  Pending

interlocutory applications, if any, shall stand disposed of.

     …………………………..J       (A.M. Khanwilkar)

     …………………………..J       (Dinesh Maheshwari)

New Delhi; December 9, 2019.