P. K. Banerjee, J. - (1.) This Rule is directed against the notices under sections 78 and 80 of the Cess Act issued by the Cess Deputy Collector, Burdwan dated 24.8.1971 asking the petitioner to pay the Road Cess and public Works Cess at Rs. 1,33,020/- and Rs. 1,30,556/- by 5.10.71. It appears that there was a proceeding being No 175-C of 1970-71 where the company appeared and showed their account and on the basis of the said Act the computation of the assessable despatch under section 6 of the Cess Act, as amended by West Bengal Act, 1964, was made. It appears that during the period of assessment public Works Cess was assessed at the rate of 12P. and 25P. respectively per tonne of coal despatched.
(2.) Being aggrieved by the aforesaid assessment the petitioner moved the Court and obtained the present rule. In paragraph 26 of the petition the petitioner stated inter alia that the respondent nos. 1 and 2 did not issue or publish any notice on the petitioner thereby giving a notice that the rate of public Works Cess was being enhanced from 12 Paise to 25 paise tor the Bengali year and as such the respondent nos. 1 and 2 did not comply with section 40 of the Cess Act, 1880 and in that view of the matter the assessment of Public Works Cess at the said enhanced rate is illegal, invalid and not binding on the petitioner.
(3.) To this allegation made in the petition an affidavit has been filed by Subhas Chandra Datta on behalf of the respondents. In paragraphs 13 and 14 of the affidavit it has been stated as follows:- "That with regards to the statements made in paragraph 26 of the petition say that cess is assessed @ time to Time determined and fixed by the Govt, and the rates are duly notified in the official Gazette. The rates which the present cess alleged in t petition was assessed as rates fixed the Govt, which was duly notified. The petitioner was assessed cess in respect of Roads and Public Works at the same rates for the years 1966-67, 1967-68, 1968-69 and 1969-and the petitioner made payments to the Govt, without any objection what-soever. Hence it shows that the petitioner had full knowledge of the present rates Cess. ";