DUNCANS AGRO INDUSTRIES LTD Vs. UNION OF INDIA & OTHERS

JUDGEMENT

(1.) The petitioner in this petition has raised, in addition to the grounds of challenge as are in C.W.P. 1039/87 , "M/s. Duncons Agro Industries Ltd. v . Union of India and Others", a further ground with regard to show cause notice dated October 1, 1986 issued to the petitioner alleging contravention by the petitioner of Central Excise Rules, 9(1), 52, 52A, 53 and 226 for evading payment of Central excise duty in respect of cigarettes manufactured and cleared from the factory at Agarpara during the period September, 1981 to February, 1983 and also addendum to the show cause notice dated October 3,1986. The grievance is that these show cause notices are in excess of the jurisdiction and/or without authority of law inasmuch as the petitioner had been paying excise duty on the basis of the provisional assessments pursuant to filing of provisional price lists and there is yet no finalisation of the provisional assessments.

(2.) According to the counsel, Section 11A of the Central Excises and Salt Act, 1944 (hereinafter called the Act) cannot be invoked in those cases where duties are paid under provisional assessment made under Rule 9B of the Central Excise Rules, 1944 (hereinafter called the Rules) without first finalising the assessment. Provisional assessment is not an assessment at all but is merely a provision for payment of some amount by way of Central excise duty pending the determination of the assessable value after taking into consideration all the elements including additions and deductions. There cannot be any non-levy or non-payment or short levy or short payment of Central excise duty unless there is a final determination of the assessable value. It is urged that Section 11A applies to re- opening of assessment for recovery of duty which has escaped assessment and is hence inapplicable unless the particular assessment has been completed in accordance with law. Reliance is placed on International Computers Indian Manufacturers Ltd. and Another v. Union of India & Others, 1981 8 ELT 632, Binny Ltd., Madras v. Superintendent Central Excise, Guindy and Others, 1979 4 ELT 65, Andhra Re- rollingWorks, Hyderabad v. Union of India and Others, 1986 AIR(SC) 1964

(3.) Our attention is also invited to a specimen provisional assessment in the prescribed proforma for determination of value under section 4 of the Act (page 141 of the Court record) and the one filed by the Addl. Solicitor General during the hearing. The contention is that the assessment is provisional in all respects as there is no provision for partial provisional assessment either in the Act or in the rules. The assessable value cannot be finally computed except after finalising post manufacturing expenses' allowed to be deducted.