M/S. Serai Kella Glass Works Pvt. Ltd. Vs. Collector of Central Excise, Patna - Court Judgment

Excerpt:
excise - differential duty - section 11-a of central excises and salt act, 1944 - appeal against orders demanding differential duty - allegedly such orders void as not preceded by show cause notice under section 11-a - provisional assessment made by proper officer quashed by high court - proper officer made final assessment in pursuant to direction of high court - no question of failure of issuance of show cause notice under section 11-a - impugned orders justified - appeal dismissed. - labour & servicesappointments: [markandey katju & g.s. singhvi, jj equality of opportunity in matters of public employment held, the equality clause enshrined in article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit. although the courts have carved out some exceptions to that rule, for example, compassionate appointment of the dependant of deceased employees, for the purpose of the present case it is not necessary to elaborate that aspect. notwithstanding the basic mandate of article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the state, the spoils system which prevailed in america in the 17the and 18th centuries has spread its tentacles in various segments of the public employment apparatus in india and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of the younger generation of the country who are forced to seek intervention of the court and wait for justice for years together. in the 17th and 18th centuries a peculiar system of employment prevailed in america. under that system, leaders of the political party which came to power considered it to be their prerogative to appoint their faithful followers to public offices and remove those who did not support the party. in the federal government, jefferson implemented the spoils system to a large extent. the prescription of a four-year term for various offices considerably increased appointment of political faithfuls to public offices and positions. the politicians who surrounded jackson brought the spoils system to its full development as an engine of party warfare. since then it became a regular feature in every administration. the phrase spoils system was derived from the statement of senator w.l. marcy of new york, in a speech in the senate in 1832. speaking of the new york politicians, he said: they see nothing wrong in the rule that to the victor belong the spoils of the enemy. by 1840, the spoils system was widely used in local, state and federal governments. as a result, america fell far behind other nations in civil service standards of ability and rectitude. when william henry harrison became president of america in 1841, the practice of appointing political followers had reached its pinnacle. numerous persons hired through the spoils system were untrained for their work and indifferent to it. in the early days, government work was simple. however, as the government grew, a serious need for qualified workers developed. after the civil war, pressure started building up for reforms in recruitment to civil services. the gross scandals of president ulysses section grants administration lent credence to the efforts of reformers. in 1871, the us congress authorised the president to make regulations for appointment to the public services and to constitute the civil service commission for that purpose. however, this merit system ended in 1875 because the us congress failed to provide funds for the same. nevertheless, the experiment proved the merit system to be both functional and supportive. ultimately, the civil service act of 1883 re-established the civil service commission. the act rendered it unlawful to fill various federal offices by the spoils system. since then, much has been done in america to avoid the evils of the system. federal civil service legislation has been greatly expanded. many municipalities and states have made training and experience a condition precedent for appointment to public offices. in the territories of india rules by the british also a large chunk of jobs went to the faithfuls of the british who were considered fit for serving the british interest. with a view to insulate the public employment apparatus in independent india from the virus of the spoils system, the framers of the constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted part xiv including articles 309,311,320(1) & (3). however, the public service commissions which were supposed to be totally independent and impartial while discharging their function in terms of article 320 have become victims of spoils system. with the passage of time appointment t these high offices became personal prerogatives of the political head of the government and men with questionable background have been appointed to these coveted positions. such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors, totally unmindful of their constitutional responsibility. the scenario is worst when it comes to appointment to the lower strata of the civil services. those who have been bestowed with the power to make appointment to class iii and class iv posts have by and large misused and abused the same by violating the relevant rules and instructions and have indulged in favouritism and nepotism with impunity, resulting in the total negation of the equality clause enshrined in article 16 of the constitution. some orders passed by the courts have also contributed to the spread of the spoils system in india. the judgments of the 1980s and early 1990s show that the supreme court gave expanded meaning to the equality clause enshrined in articles 14 and 16 and issued directions for treating temporary/ad hoc/daily-wage employees on a par with regular employees in the matter of payment of salaries, etc. the schemes framed by the governments and public bodies for regularisation of illegally appointed temporary/ad hoc/daily-wage/casual employees got approval of the courts. in some cases, the courts also directed the state and its instrumentalities/agencies to frame schemes for regularisation of the services of such employees. as a result of this, beneficiaries of the spoils system and corruption garnered substantial share of class iii and class iv posts and thereby caused irreparable damage to the service structure at the lower levels. those appointed by back-door methods or as a result of favouritism, nepotism or corruption do not show any commitment to their duty as public servants. not only this, majority of them are found to be totally incompetent or inefficient. however, the court gradually realized that unwarranted sympathy shown to the progenies of the spoils system had eaten into the vitals of the service structure of the state and public bodies and this is the reason why relief of reinstatement and/or regularisation of service has been denied to illegal appointees/back-door entrants in a large number of cases. if the initial appointments of the respondents are found to be illegal per se, the direction given by the high court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularisation of their services. however, none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the high court and none has been produced before the supreme court. the report of enquiry held against d, bears ample testimony of manipulations made by the officer in making appointment on class iii and class iv posts. so much so, with a view to remove every trace of the illegality committed by him, d ensured disappearance of all the papers relating to appointments from his office. the so-called regularisation of the services of the respondents is a proof of nepotism practiced by the officer and deserves to be ignored. the respondents have not produced any copy of the order by which their services were regularized. perhaps none exists. material on record shows that in less than 7 months of the respondents appointment (except respondent 1 who is said to have been appointed with effect from 9.10.1991), d is said to have written a confidential memorandum dated 11.5.1992 to the district animal husbandry officer that ad hoc appointments made by the local appointments committee constituted on 11.5.1992. moreover, the said committee was constituted on 11.5.1992, it met on the same day and regularised the ad hoc appointments. no rule of policy has been brought to the courts notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. therefore, it is held that the exercise undertaken by d for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce. therefore, it is further held that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in articles 14 and 6 and the provisions of the employment exchanges (compulsory notification of vacancies) act, 1959 and the single judge of the high court gravely erred by directing their reinstatement with consequential benefits. it is settled that the guarantee of equality before law enshrined in article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. if an illegality or irregularity has been committee in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. - 1. 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. 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. no question of failure of issuance of show cause notice under section 11a arises in this case.ordersuhas c. sen, j.1. 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 assistant collector of central excise calling upon the assessee to explain as to why certain deductions claimed by them should not be added back to the excisable value of the goods. this was followed up by another show cause notice dated 16.8.1979 directing the appellants to follow the provisional assessment procedure prescribed under rule 9b of the rules and execute bonds for the purpose of effecting further clearances. on 5.9.1979, the superintendent of central excise issued yet another show cause notice calling upon the appellants to explain as to why differential rate of duty should not be demanded under rule 10 of the rules w.e.f. 20.6.1979 and why penalty should not be imposed on them under rule 173q of the rules. by another order dated 21.3.1980, the assistant collector modified the price list filed by the appellants and disallowed all the deductions claimed by them except for trade discounts. 3. the appellants filed a writ petition in the high court challenging the aforesaid orders passed by the superintendent of central excise. ultimately on 15.9.1982, the high court quashed the show cause notice, the order passed on 21.3.1980 by the assistant collector of central excise disallowing the claim for the deductions made by the appellants and also the direction for provisional clearance on furnishing of bond given on 16.8.1979. 4. the high court, however, remanded the case back to the assistant collector to ascertain the element which will constitute post-manufactural expenses which according to the high court could not be included in the assessable value. the assessable value was directed to be redetermined by the assistant collector in accordance with the guidelines given by the high court. 5. the central excise authorities did not prefer any appeal against the order of the high court. on 7.3.1983, the assistant collector issued another show cause notice as to why claims for various deductions should not be disallowed. by final order dated 6.9.1984, the assistant collector rejected the claims for deductions following the law laid down by this court in the case of union of india v. bombay tyres international ltd. and ors. : 1983ecr653d(sc) . a sum of rs. 4,61,09,242.28p. was demanded for the period from 20.6.1979 to 30.7.1983. by a further order dated 17.10.1984, the assistant collector made another demand for differential duty amounting to rs. 27,81,826.87p. for the period from 1.8.1983 to 31.12.1983. 6. the appellants' 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 proposition on the decision of this court in the case of union of india and ors. v. madhumilan syntex pvt. ltd. and anr. : 1988(35)elt349(sc) . 8. in madhumilan's case, an approved classification list was in force. a demand was made without issuing a notice modifying the classification list. in the instant case, however, there was a series of notices issued by the excise authorities. although show cause notice date 5.7.1979 was quashed by the patna high court, the other notice had not been quashed. in any event, the tribunal has pointed out that the excise authorities wrote to the appellant repeatedly for production of the bills and account books for the purpose of 'determination of duty liability'. the tribunal held that the assistant collector's letter dated 5.12.1983 was nothing but a notice for levy of 'differential duty'. 9. in gokak patel volkart limited v. collector of central excise, belgaum : 1987(28)elt53(sc) , it was held by this court that issue of show cause notice under sub-section (1) of section 11a was a condition-precedent to a demand under sub-section (2) of that section. 10. on behalf of the revenue, mr. gauri shankar murthy drew our attention to the case of samrat international (p) ltd. v. collector of central excise, hyderabad : 1991ecr19(sc) , where this court held that when the assessee cleared the goods by determining the duty himself and debiting the amount to personal ledger account, the duty was provisional and subject to final approval by the excise officer concerned. in such situations, para (b), clause (e) of the explanation to section 11b will apply. the relevant provisions of section 11b at the material time were as under: 11b. claim for refund of duty. (1) any person claiming refund of any duty of excise may make an application for refund of such duty to the assistant collector of central excise before the expiry of six months from the relevant date: provided that the limitation of six months shall not apply where any duty has been paid under protest. x x x xexplanation. - for the purposes of this section, - (a) x x x x (b) 'relevant date' means, - (a) to (d) x x x x (e) in a case where duty of excise is paid provisionally under this act or the rules made thereunder, the date of adjustment of duty after the final assessment 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. kosan metal products ltd. : 1988(38)elt573(sc) . in that case, brass rods were assessed under ii 68 during the period from 24.7.1978 to 31.3.1979 and under ti 26-a (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 off of duty and a notice for imposition of penalty was issued under rule 173q. it was alleged in the notice that the company was not eligible to set off of duty. the case of the company was that no notice under rule 10 was issued to it within the time and there had been no fraud, collusion, wilful misstatement or suppression of facts on its part and that it had correctly availed this set off. 13. rule 10 has now been repealed and the provisions of it have been incorporated in section 11a of the act. but, in that case the tribunal found that the classification lists had been finalised by the bombay collectorate. the assistant collector, surat, had no authority to reopen those assessments. 14. because the assessments had become final, this court held that when the duty of excise had not been levied or paid or short-levied or short-paid, a notice had to be issued under section 11a to realise the amount which has been short-levied. the notice has to be issued normally within a period of six months of completion of final assessment. this case does not in any way give any support to the contention made by mr. dave. 15. in the instant case, the high court after quashing the provisional assessment, directed the assessments to be made afresh in accordance with the guidelines given by it. no question of giving any notice under section 11a arises at this stage. the provisional assessment was quashed by the high court and direction was given to recompute the value of the excisable goods. this could only be done in accordance with the substantive provisions of section 4 and in accordance with the procedure laid down in rule 173 i which at the material time stood as under: assessment by proper officer. (1) the proper officer shall on the basis of the information contained in the return filed by the assessee under sub-rule (3) of rule 173g and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. a copy of the return so completed shall be sent to the assessee. (2) the duty determined and paid by the assessee under rule 173f shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current 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 assesses is entitled under rule 173f to determine his liability for duty 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 receipt of the copy of the return from the proper officer. if the duty on final assessment payable by the assessee is less than what he has actually paid, the assessee is entitled to take credit in the account-current for the excess payment. no question of any show cause notice under section 11a arises at this stage. the duty has to be paid by making adjustment in the account-current which has to be maintained by the assessee within ten days' time. 17. section 11a deals with recovery of duty not levied or not paid or short-levied or short-paid or erroneously refunded. proceedings under section 11a have to be commenced with a show cause notice issued within six months from the relevant date. 'relevant date' has been defined under sub-section 3(ii) to mean 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. 18. after final assessment, a copy of the order on the return filed by the assessee has to be sent to him. duty has to be paid by the assessee on the basis of the final assessment within ten days' time from the receipt of the return. no question of giving any notice under section 11a arises in such a case. it is only when even after final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duty, the excise officer is empowered to take proceedings under section 11a within the period of limitation after issuing a show cause notice. in such a case, limitation period will run from the date of the final assessment. the scope of section 11a and rule 173 i are quite different. in this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the high court, the proper officer has made the final assessment. no question of failure of issuance 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. 19. there is no merit in the appeals. the appeals are, therefore, dismissed with no order as to costs.

Judgment:
ORDER

Suhas C. Sen, J.

1. 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 Assistant Collector of Central Excise calling upon the assessee to explain as to why certain deductions claimed by them should not be added back to the excisable value of the goods. This was followed up by another show cause notice dated 16.8.1979 directing the appellants to follow the provisional assessment procedure prescribed under Rule 9B of the Rules and execute bonds for the purpose of effecting further clearances. On 5.9.1979, the Superintendent of Central Excise issued yet another show cause notice calling upon the appellants to explain as to why differential rate of duty should not be demanded under Rule 10 of the Rules w.e.f. 20.6.1979 and why penalty should not be imposed on them under Rule 173Q of the Rules. By another order dated 21.3.1980, the Assistant Collector modified the price list filed by the appellants and disallowed all the deductions claimed by them except for trade discounts.

3. The appellants filed a writ petition in the High Court challenging the aforesaid orders passed by the Superintendent of Central Excise. Ultimately on 15.9.1982, the High Court quashed the show cause notice, the order passed on 21.3.1980 by the Assistant collector of Central Excise disallowing the claim for the deductions made by the appellants and also the direction for provisional clearance on furnishing of bond given on 16.8.1979.

4. The High Court, however, remanded the case back to the Assistant Collector to ascertain the element which will constitute post-manufactural expenses which according to the High Court could not be included in the assessable value. The assessable value was directed to be redetermined by the Assistant Collector in accordance with the guidelines given by the High Court.

5. The Central Excise authorities did not prefer any appeal against the order of the High Court. On 7.3.1983, the Assistant Collector issued another show cause notice as to why claims for various deductions should not be disallowed. By final order dated 6.9.1984, the Assistant Collector rejected the claims for deductions following the law laid down by this Court in the case of Union of India v. Bombay Tyres International Ltd. and Ors. : 1983ECR653D(SC) . A sum of Rs. 4,61,09,242.28p. was demanded for the period from 20.6.1979 to 30.7.1983. By a further order dated 17.10.1984, the Assistant Collector made another demand for differential duty amounting to Rs. 27,81,826.87p. for the period from 1.8.1983 to 31.12.1983.

6. The appellants' 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 proposition on the decision of this Court in the case of Union of India and Ors. v. Madhumilan Syntex Pvt. Ltd. and Anr. : 1988(35)ELT349(SC) .

8. In Madhumilan's case, an approved classification list was in force. A demand was made without issuing a notice modifying the classification list. In the instant case, however, there was a series of notices issued by the excise authorities. Although show cause notice date 5.7.1979 was quashed by the Patna High Court, the other notice had not been quashed. In any event, the Tribunal has pointed out that the excise authorities wrote to the appellant repeatedly for production of the bills and account books for the purpose of 'determination of duty liability'. The Tribunal held that the Assistant Collector's letter dated 5.12.1983 was nothing but a notice for levy of 'differential duty'.

9. In Gokak Patel Volkart Limited v. Collector of Central Excise, Belgaum : 1987(28)ELT53(SC) , it was held by this Court that issue of show cause notice under Sub-section (1) of Section 11A was a condition-precedent to a demand under Sub-section (2) of that Section.

10. On behalf of the Revenue, Mr. Gauri Shankar Murthy drew our attention to the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad : 1991ECR19(SC) , where this Court held that when the assessee cleared the goods by determining the duty himself and debiting the amount to personal ledger account, the duty was provisional and subject to final approval by the Excise Officer concerned. In such situations, Para (B), Clause (e) of the Explanation to Section 11B will apply. The relevant provisions of Section 11B at the material time were as under:

11B. Claim for refund of duty. (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date:

Provided that the limitation of six months shall not apply where any duty has been paid under protest.

x x x x

Explanation. - For the purposes of this section, -

(A) x x x x

(B) 'relevant date' means, -

(a) to (d) x x x x

(e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment 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. Kosan Metal Products Ltd. : 1988(38)ELT573(SC) . In that case, brass rods were assessed under II 68 during the period from 24.7.1978 to 31.3.1979 and under TI 26-A (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 off of duty and a notice for imposition of penalty was issued under Rule 173Q. It was alleged in the notice that the company was not eligible to set off of duty. The case of the company was that no notice under Rule 10 was issued to it within the time and there had been no fraud, collusion, wilful misstatement or suppression of facts on its part and that it had correctly availed this set off.

13. Rule 10 has now been repealed and the provisions of it have been incorporated in Section 11A of the Act. But, in that case the Tribunal found that the classification lists had been finalised by the Bombay Collectorate. The Assistant Collector, Surat, had no authority to reopen those assessments.

14. Because the assessments had become final, this Court held that when the duty of excise had not been levied or paid or short-levied or short-paid, a notice had to be issued under Section 11A to realise the amount which has been short-levied. The notice has to be issued normally within a period of six months of completion of final assessment. This case does not in any way give any support to the contention made by Mr. Dave.

15. In the instant case, the High Court after quashing the provisional assessment, directed the assessments to be made afresh in accordance with the guidelines given by it. No question of giving any notice under Section 11A arises at this stage. The provisional assessment was quashed by the High Court and direction was given to recompute the value of the excisable goods. This could only be done in accordance with the substantive provisions of Section 4 and in accordance with the procedure laid down in Rule 173 I which at the material time stood as under:

Assessment by proper officer. (1) The proper officer shall on the basis of the information contained in the return filed by the assessee under Sub-rule (3) of Rule 173G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be sent to the assessee.

(2) The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under Sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current 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 assesses is entitled under Rule 173F to determine his liability for duty 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 receipt of the copy of the return from the proper officer. If the duty on final assessment payable by the assessee is less than what he has actually paid, the assessee is entitled to take credit in the account-current for the excess payment. No question of any show cause notice under Section 11A arises at this stage. The duty has to be paid by making adjustment in the account-current which has to be maintained by the assessee within ten days' time.

17. Section 11A deals with recovery of duty not levied or not paid or short-levied or short-paid or erroneously refunded. Proceedings under Section 11A have to be commenced with a show cause notice issued within six months from the relevant date. 'Relevant date' has been defined under Sub-section 3(ii) to mean 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.

18. After final assessment, a copy of the order on the return filed by the assessee has to be sent to him. Duty has to be paid by the assessee on the basis of the final assessment within ten days' time from the receipt of the return. No question of giving any notice under Section 11A arises in such a case. It is only when even after final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duty, the Excise Officer is empowered to take proceedings under Section 11A within the period of limitation after issuing a show cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11A and Rule 173 I are quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the High Court, the proper officer has made the final assessment. No question of failure of issuance 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.

19. There is no merit in the appeals. The appeals are, therefore, dismissed with no order as to costs.