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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11923 OF 2018

MARUTI SUZUKI INDIA LTD. (EARLIER KNOWN AS MARUTI UDYOG LTD.)    ...APPELLANT(S)

VERSUS

COMMISSIONER OF INCOME TAX, DELHI   ...RESPONDENT(S)   

WITH  

CIVIL APPEAL NO.11924 OF 2018

J U D G M E N T

ASHOK BHUSHAN,J.

By these appeals the assessee has challenged

the judgment of the High Court of Delhi dated

07.12.2017 deciding the Income Tax Appeal No.31 of

2005. ITA No.31 of 2005 related to Assessment year

1999­2000 and ITA No.442 of 2005 related to

Assessment year 2000­2001, in both the appeal

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similar questions were answered against the

assessee. For deciding these two appeals it is

sufficient to notice the facts in CA No.11923 of

2018 for Assessment Year 1999­2000. The High Court

by the impugned judgment has affirmed the views of

Income Tax Appellate Tribunal on the questions

which have been raised in this appeal. The

Assessing Officer as well as the Commissioner of

Income Tax (Appeals) has not accepted the claim of

the appellant. The appellant (hereinafter referred

to as the “assessee”) is engaged in the business of

manufacturing automobiles, which are chargeable to

Excise Duty under the Central Excise Act, 1994. The

assessment year in question is assessment year

1999­2000. The assessee, a Company, has been

engaged in manufacturing and sale of various Maruti

Cars and also trades in spares and components of

the vehicles. It acquires exiceable raw materials

and inputs which are used in the manufacturing of

the vehicles. The assessee had also been taking

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benefit of MODVAT credit on the raw material and

inputs used in the manufacturing. At the end of the

Assessment year 1999­2000 an amount of

Rs.69,93,00,428/­ was left as unutilised MODVAT

credit. In the return it was claimed that the

Company was eligible for deduction under Section

43B of the Income Tax Act as an allowable

deduction. Similarly, the Company claimed deduction

under Section 43B of an amount of Rs. 3,08,88,171/­

in respect of Sales Tax Recoverable Account.  

  2. The Assessing Officer passed assessment order

dated 28.03.2002. The Assessing Officer disallowed

the claim of deduction of Rs.69,93,00,428/­ as well

as Rs.3,08,99,171/­.  Aggrieved by  the  assessment

order, the assessee filed an appeal before the

Commissioner of Income Tax. The Commissioner of

Income Tax also sustained the disallowance of the

above two items. An appeal to ITAT met the same

fate. The ITAT took the view that the advance

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payment of Excise Duty which represented unutilised

MODVAT credit without incurring the liability of

such payment is not an allowable deduction under

Section 43B.   The assessee filed an appeal under

Section 260A of the Income Tax Act in the High

Court. The High Court answered question Nos.(ii)

and ((iii) relating to the above noted disallowance

in favour of the Revenue. Aggrieved by the judgment

of the High Court, these appeals have been filed.

3. The two questions which were answered by the

High Court in favour of the Revenue which were

subject matter of this appeal are question Nos.(ii)

and (iii) as framed by the High Court are to the

following effect:

"(ii) Whether the ITAT had committed an error of law in upholding the disallowance of the amount of Rs.69,93,00,428/­ which represented MODVAT credit of Excise Duty that remained unutilised by 31st  March, 1999 i.e. the end of the relevant accounting year ?

(iii) Whether the ITAT has committed an

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error of law in upholding the disallowance of Rs.3,08,99,171/­ in respect of Sales Tax Recoverable Account, under Section 43B of the Income­tax Act ?”

4. We have heard Shri S. Ganesh, learned senior

counsel for the appellant­assessee and Shri Arijit

Prasad, learned senior counsel for the Revenue.

5. Shri Ganesh submits that the amount paid by

way of Excise Duty by the assessee to its suppliers

of raw materials and inputs, is accepted as Excise

Duty under the provisions of Central Excise Act and

Rules. Consequently, when the said payments are

made by the assessee to its suppliers, they should

be treated as payments of Excise Duty which

straightaway  qualify for  deduction  under  Section

43B of the Income Tax Act, irrespective of whether

or when the MODVAT credit arising from such

payments is utilised to make payment of Excise Duty

on the products manufactured by the assessee. The

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High Court erroneously held that the above payments

made by the assessee are mere contractual payments

and not payments by way of Excise Duty. As soon as

the raw materials and inputs are received in the

appellant's factory, the assessee becomes entitled

to avail of MODVAT credit in respect of Excise Duty

paid on the raw materials and inputs and which is

mentioned in the manufacturer­supplier's invoice.

The assessee was clearly entitled for deduction of

unutilised MODVAT credit balance as on 31.03.1999.

6. Shri Ganesh in alternative submits that

questions are squarely covered in favour of the

assessee by  the  1st  proviso to  Section  43B. The

assessee's Excise Returns establish that while the

untilised MODVAT credit as on 31.03.1999 was Rs.

69.30 crores, the entire amount was utilised in

April, 1999 itself. Consequently, the assessee is

entitled to the deduction under the 1st proviso to

Section 43B. The object and purpose of Section  43B

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of the Act is to ensure that an assessee does not

get deduction in respect of an amount unless and

until the amount has been received by the

Government. In the present case the full amount of

Excise Duty was paid into the coffers of Government

when the manufacturer of raw material/inputs had

cleared the same from his factory  gate for supply

to the assessee. The basic object of Section 43B of

the Act is fully subserved and deduction should

have been granted as claimed by the assessee.

7. Shri Arijit Prasad, learned senior counsel for

the Revenue refuting the submissions of the learned

counsel for the assessee contends that deduction

under Section 43B is allowable only when the amount

of tax, cess etc. are due and payable and the

assessee actually pays the same. In the present

case the Excise Duty becomes due and payable only

when the assessee removes the finished product from

the factory gate, at the point in time when the

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assessee makes payment to the suppliers the Excise

Duty is not due and payable. It is not in dispute

that the assessee was entitled to the duty paid by

it to the manufacturer under Rule 57A to Rule 571

of the Central Excise Rules, 1944. Further it is

not in dispute that the assessee was entitled to

utilise MODVAT credit towards payment of Excise

Duty leviable on the final products manufactured by

it. The liability under the Central Excise Act to

pay Excise Duty is only on the manufacture of the

excisable goods. The assessee is not one who is

liable to pay Excise Duty on the raw

materials/inputs. It is merely the incidence of

Excise Duty that has shifted from the manufacturer

to the purchaser and not the liability to pay the

same. Answering the submission of counsel for the

assessee based on proviso to Section 43B, it is

submitted that liability to pay Excise Duty of the

assessee is incurred on the removal of the finished

goods in the subsequent year, therefore, on

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31.03.1999, the assessee was not liable to pay the

Excise Duty and, therefore, the proviso will also

not come to the aid of the assessee.

8. We have considered the submissions of the

learned counsel for the parties and perused the

records.

9. The two issues which need to be answered by us

in these appeals are:

"(i) Whether the ITAT had committed an error of law in upholding the disallowance of the amount of Rs.69,93,00,428/­ which represented MODVAT credit of Excise Duty that remained unutilised by 31st  March, 1999 i.e. the end of the relevant accounting year ?

(ii) Whether the ITAT has committed an error of law in upholding the disallowance of Rs.3,08,99,171/­ in respect of Sales Tax Recoverable Account, under Section 43B of the Income­tax Act ?”

10. We need to first notice the provisions of

Section 43B under which deduction is sought to be

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claimed. Section 43B is as follows:

“43B.Certain deductions to be only on actual payment.­Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of—

(a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or

(b)any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, or

(c)any sum referred to in clause (ii) of sub­section (1) of section 36, or

(d)any sum payable by the assessee as interest on any loan or borrowing from any public financial institution or a State financial corporation or a State industrial investment corporation, in accordance with the terms and conditions of the agreement governing such loan or borrowing, or

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(e) any sum payable by the assessee as interest on any loan or advances from a scheduled bank[or a co­operative bank other than a primary agricultural credit society or a primary co­operative agricultural and rural development bank] in accordance with the terms and conditions of the agreement governing such loan or advances, or

(f)any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee, or

(g)any sum payable by the assessee to the Indian Railways for the use of railway assets,

shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him :

Provided  that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub­section (1) of  section 139  in

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respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return.

....”

11. The untilised MODVAT credit on 31.03.1999 to

the credit of the assessee was Rs.69,93,00,428/­.

The MODVAT credit was accumulated to the account of

the assessee due to payment of Excise Duty on raw

materials and inputs which were supplied to it by

the suppliers and reflected in the invoices by

which raw materials and inputs were supplied. There

is no denial to the fact that the appellant was

entitled to utilise this credit in payment of

Excise Duty to which the assessee was liable in

payment of Excise Duty on manufacture of its

products. When we analyse provision of Section 43B

of the Act the provision indicates that deduction

thereunder is to be allowed on fulfilment of the

following conditions:

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"a.there should be an actual payment of Excise Duty whether “by way of tax, duty, cess or fee, by whatever name”;

b.such payment has to be “under any law for the time being in force”;

c.the payment of such sum should have been made by the assessee;

d.irrespective of the method of accounting regularly employed by the assessee, deduction shall be allowed while computing the income tax for the  previous year “in which  sum  is actually paid” by the assessee;

e.the expression “any such sum payable” refers to a sum for which the assessee incurred liability in the previous year even though such sum might not have been payable within that year under the relevant law.”

12. The fulfillment of the above statutory

conditions is necessary for allowing deduction

under Section 43B. We have to examine the facts of

the present case to find out as to whether all the

conditions which are necessary for permissible

deduction under Section 43B are present here or

not.

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13. The crucial words in Section 43B(a) are “any

sum payable by the assessee by way of tax, duty,

cess or fee...”. We need to examine as to whether

unutilised credit under MODVAT Scheme was  sum

payable by the assessee.

14. The Excise Duty is levied under the Central

Excise Act, 1944 and collected as per the Central

Excise Rules, 1944. The assessee in reference to

the Central Excise Rules, 1944 is Assessee as

defined in Rule 2(3) which is to the following

effect:­  

“Rule 2(3). “assessee” means any person who is liable for payment of  duty assessed  and  also includes any producer or manufacturer of excisable goods or a registered person of a private warehouse in which excisable goods are stored;”

15. The taxable event is manufacture and

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production of excisable articles and payment of

duty is relatable to date of removal of such

article from the factory. The manufacture of the

raw materials or inputs which have been used by

the appellant are the excisable items within the

meaning of Central Excise Rules, 1944. The Excise

Duty is leviable on the manufacturer of raw

materials and inputs. The supplier of raw

materials or inputs includes the Excise Duty paid

on such articles in his sale invoices. The

appellant when purchases raw materials and inputs

for manufacture of vehicles it maintains a

separate account containing the Excise Duty as

mentioned in sale invoices. The credit of such

Excise Duty paid by the appellant is to be given

to the appellant by virtue of Rule 57A to 57F of

Central Excise Rules, 1944 as it then existed. The

appellant was fully entitled to discharge his

liability to pay Excise Duty on vehicles

manufactured by adjusting the credit of Excise

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Duty earned by it as per MODVAT scheme. The

liability to pay Excise Duty is not fastened on

two entities as per the scheme of Central Excise

Act and Central Excise Rules. It is the

manufacturer of raw materials and inputs which are

used by appellant who has statutory liability to

pay Excise Duty. The appellant is not assessee

within the meaning of Central Excise Act, 1944,

with reference to raw materials and inputs

manufactured by the entities from which appellant

had purchased the raw materials and entities.  

16. As per Section 43B(a) of Income Tax Act,

deduction is allowed on “any sum payable by the

assessee by way of tax, duty, cess or fee.” The

credit of Excise Duty earned by the appellant under

MODVAT scheme as per Central Excise Rules, 1944 is

not sum payable by the assessee by way of tax,

duty, cess. The scheme under Section 43B is to

allow deduction when a sum is payable by assessee

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by way of tax, duty and cess and had been actually

paid by him.  

17. Furthermore, the deductions under Section 43B

is allowable only when sum is actually paid by the

assessee. In the present case, the Excise Duty

leviable on appellant on manufacture of vehicles

was already adjusted in the concerned assessment

year from the credit of Excise Duty under the

MODVAT scheme. The unutilised credit in the MODVAT

scheme cannot be treated as sum actually paid by

the appellant. The assessee when pays the cost of

raw materials where the duty is embedded, it does

not ipso facto mean that assessee is the one who is

liable to pay Excise Duty on such raw

material/inputs. It is merely the incident of

Excise Duty that has shifted from the manufacturer

to the purchaser and not the liability to the same.

18. We thus, conclude that the unutilised credit

under MODVAT scheme does not qualify for deductions

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under Section 43B of the Income Tax Act.

19. Shri Ganesh has relied on judgment of this

Court in  Eicher Motors Ltd. and another versus

Union of India and others, (1999) 2 SCC 361,  and

submits that facility of credit is as good as tax

paid, hence, it be accepted that by payment of

Excise Duty although which is part of sale invoice

issued by manufacturer or producer of raw material

or inputs, the payment by appellant was Excise Duty

which qualified for deduction under Section 43B.

20. In  Eicher Motors Ltd. and another,  the

challenge to the validity of scheme as modified by

introduction of Rule 57F of Central Excise Rules,

1944 was under consideration. According to Section

57­F(4A) of Central Excise Rules, 1944, credit

which was lying unutilised on 16.03.1995 with the

manufacturers, stood lapsed, Rule 57­F(4­A) has

been extracted in paragraph 2 of the judgment which

is to the following effect: ­

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“2.  The relevant Rule reads as follows:

“57­F. (4­A) Notwithstanding anything contained in sub­rule (4), or sub­rule (1) of Rule 57­A and the notifications issued thereunder, any credit of specified duty  lying  unutilised  on  the  16th day of March, 1995 with a manufacturer of tractors, falling under Heading No. 87.01 or motor vehicles falling under Heading No. 87.02 and 87.04 [or chassis of such tractors or such motor vehicles under Heading No. 87.06] of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) shall lapse and shall not be allowed to be utilised for payment of duty on any excisable goods, whether cleared for home consumption or for export:

Provided that nothing contained in this sub­rule shall apply to credit of duty, if any, in respect of inputs lying in stock or contained in finished products lying in stock on the 16th day of March, 1995.”

21. This Court in reference to 57­F(4­A) took the

view that right to credit had become absolute at

any rate when the input is used in the manufacture

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of the final products. This court held that the

scheme sought to be introduced cannot be made

applicable to the goods which had already come into

existence in respect of which the earlier Scheme

was applied. Following observations have been made

by this Court in paragraph 5 of the above

judgment:­

“As pointed out by us that when on the strength of the Rules available, certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that the right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which

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the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees.”

22. The observations in the above paragraph that

facility of credit is as good as tax paid till tax

is adjusted on future goods were made in context of

57­F(4­A) of Central Excise Rules,1944.

23. The above observation cannot be read to mean

that payment of Excise Duty by the appellant which

was component of sale invoice purchasing the raw

material/inputs by the appellant is also payment of

Excise Duty on raw material/inputs.

24. By payment of component of Excise Duty as

included in sale invoice is benefit which is given

to appellant by virtue of credit as envisaged in

statutory scheme of Rule 57­A to 57­I of Central

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Excise Rules, 1944. The above judgment thus in no

manner supports the submissions of the appellant

for the purposes of the present case.  

25. Next judgment relied by Shri Ganesh in

Collector of Central Excise, Pune and others

versus Dai Ichi Karkaria Ltd. and others; (1999) 7

SCC 448.    In the above case, this Court had

occasion to consider Section 4 of Central Excise

Act, 1944, which provides for valuation of raw

material covered by MODVAT Scheme. Referring to

Rule 57­A(1)   and Rule 57­F(1), this Court laid

down following in paragraph 18, 19 and 20: ­

“18. It is clear from these rules, as we read them, that a manufacturer obtains credit for the Excise Duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgment thereof. It is entitled to use the credit at any time thereafter when making payment of Excise Duty on the excisable product...

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19. It is, therefore, that in the case of Eicher Motors Ltd. vs. Union of India, this Court said that a credit under the MODVAT Scheme was as good as tax paid.

20. With this in mind, we must now determine whether the Excise Duty paid on the raw material should form part of the cost of the excisable product for the purposes of Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules.”

26. In  the above case, this Court held  that in

determining the cost of the excisable product

covered by MODVAT Scheme under Section 4(1)(b) of

the Act read with Rule 6 of the Valuation Rules,

the Excise Duty paid on raw material covered by

MODVAT Scheme is not to be included. The question

which was answered in the above case was entirely

different to one which has arisen in the present

case.  

27. This Court as noted above in the above case has

laid down that credit for the Excise Duty paid for

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the raw material can be used at any time when

making payment of Excise Duty on excisable product.

The user of such credit is at the time of payment

of Excise Duty on the excisable product i.e. at the

time when appellant is to pay Excise Duty on its

manufactured vehicle.  

28. The judgment of this Court in  Berger Paints

India Ltd. versus Commissioner of Income Tax, 2004

(266) ITR 99, has also been referred to. The

assessee company in the above case had claimed that

under Section 43B of the Income Tax Act, it was

entitled to deduction of the entire sum being the

duties actually paid during the relevant previous

years. The appellant in the year in question had

incurred expenditure on account of customs and

Excise Duty aggregating to Rs.5,85,87,181/­ which

was duties debited to the profit and loss account

of the company for the relevant previous year. In

assessment proceedings the company’s claim that it

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was entitled to deduct the entire sum of

Rs.5,85,87,181/­ being the duties actually paid

during the relevant year was accepted. The

Commissioner  of  Income Tax  initiated  proceedings

under Section 263 of the Act claiming that

Assessing officer had wrongly allowed the claim for

deduction. The Commissioner held that assessing

officer incorrectly relied on judgment of Gujarat

High Court in Lakhan Pal National Ltd. versus ITO

(1986) 162 ITR 240,  ITAT also. ITAT referred a

question to the High Court. The High Court answered

the question in favour of Revenue against which the

appeal was filed. The relevant facts have been

noticed in the judgment of this Court in following

words: ­

“...In the assessment proceedings of the assessment year 1984­85, the Inspecting Assistant Commissioner of Income­tax allowed the appellant­ assessee’s claim that it was entitled to deduct the entire sum of Rs.5,85,87,181/­ being the duties actually paid during the relevant year

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previous to the assessment year 1984­ 85. The Commissioner of Income­tax initiated proceedings under section 263 of the Act on the ground that the Assessing Officer had wrongly allowed the claim for deduction of an amount of Rs.98,25,833/­ towards customs and Excise Duty paid during the previous year but credited to the profit and loss account in closing stock of goods under the provisions of Section 43B. the assessee relied upon the judgment of the Gujarat high Court in Lakhanpal National Ltd. Vs. ITO[1986] 162 ITR 240[hereinafter referred to as “Lakhanpal National Ltd.’s case”] in support of its claim. The Commissioner of Income­tax took the view that the Gujarat High Court’s decision was distinguishable on facts and, therefore, made an order under section 263 of the Act disallowing the claim of the assessee. On appeal to the Tribunal, the Tribunal held that the Gujarat high court’s judgment in Lakhanpal National Ltd.’s case [1986] 162 ITR 240 was distinguishable and confirmed the order of the Commissioner of Income­tax. On an application made under section 256(1) of the Act at the instance of the appellant­assessee, the Tribunal, inter alia, referred the following question of law for the opinion of the High Court (see [2002] 253 IT 738, 739):

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in

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rejecting the assessee’s claim for deduction of the excise and customs duties of Rs.98,25,833 paid in the year of account and debited in the profit and loss account, on the ground that the crediting of the profit and loss account by the value of the closing stock, which included the aforesaid duties, did not have the effect of wiping out the debit to the profit and loss account?”

The High Court by its judgment dated September 24, 2001, in I.T.R.No.213 of 1993 (see [2002] 253 ITR 738), answered the question referred in favour of the Revenue and against the assessee.”

29. This Court in  Berger Paints Ltd. (Supra)

upheld the view of assessing officer and decided

the question in favour of the assessee. This Court

held that the Commissioner of Income Tax has

incorrectly  distinguished  the  judgment  of  Lakhan

Pal National Ltd. Case.  

30. As noted above in the above case, the claim of

the assessee was that entire sum of

Rs.5,85,87,181/­ was the duties actually paid

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during the relevant previous year. The above was

not a case for unutilised MODVAT credit, hence, the

said case cannot be held to lay down any ratio with

respect to allowable deduction under Section 43B in

respect of unutilised MODVAT credit.

31. Now coming to the second question i.e. with

regard to disallowance of Rs.3,08,79,171/­ in

respect of Sale tax recoverable amount,the High

Court in paragraph 52 of the judgment has noticed

relevant facts in above reference in following

words: ­

“52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales­tax paid is part of the cost of raw material, the Assessee debits  the  purchases  net  of sales tax; the sales tax paid is debited to a separate account titled ‘Sales­tax Recoverable A/c”. Under the Haryana General Sales  Tax  Act 1973, the Assessee cold set off such sales­tax against its liability on the sales of the

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finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account.”

32. The High Court had rightly answered the above

question in favour of the Revenue relying on its

discussion with respect to Question No.1. The

sales tax paid by the appellant was debited to a

separate account titled ‘Sales Tax recoverable

account’. The assessee could have set off sales

tax against his liability on the sales of finished

goods i.e. vehicles. We do not find any infirmity

in the view of the High Court answering the above

question.

33. The next submission which has been advanced by

Shri Ganesh is on the first proviso to Section

43B. It has been submitted that Return for the

assessment year in question was to be filed before

30.09.1999 and unutilised credit in fact was fully

utilised by 30.04.1999 itself. It is submitted

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that since the unutilised credit was utilised for

payment of Excise Duty on the manufactured

vehicles, the said amount ought to have been

allowed as permissible deduction under Section

43B.

34. The proviso to Section 43B provides that

nothing contained in the Section shall apply in

relation to any sum which is actually paid by

assessee on or before due date applicable in his

case for furnishing the return in respect of the

previous year in which the liability to pay such

sum was incurred. The crucial words in the proviso

to Section 43B are “in respect of the previous

year in which the liability to pay such sum was

incurred”. The proviso takes care of the situation

when liability to pay a sum has incurred but could

not be paid in the year in question and has been

paid in the next financial year before the date of

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submission of the Return. In the present case,

there was no liability to adjust the unutilised

MODVAT credit in the year in question since had

there been liability to pay Excise Duty by the

appellant on manufacture of vehicles, the

unutilised MODVAT credit could have been adjusted

against the payment of such Excise Duty. In the

present case, the liability to pay Excise Duty of

the assessee is incurred on the removal of

finished goods in the subsequent year i.e. year

beginning from 01.04.1999 and what we are

concerned with is unutilised MODVAT Credit as on

31.03.1999 on which date the asseessee was not

liable to pay any more Excise Duty. Hence, present

is not a case where appellant can claim benefit of

proviso to Section 43B. The submissions of Shri

Ganesh on proviso to Section 43B also does not

support his claim.

35. In view of the foregoing discussions, we are

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of the view that High Court has correctly answered

both the questions against the assessee­appellant

and in favour of the Revenue. Consequently, the

appeals are dismissed.

.................J. [ ASHOK BHUSHAN ]

.................J.  [ NAVIN SINHA ]

NEW DELHI, FEBRUARY 07, 2020.