TMI Blog1967 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... but only with item No. 4. In other words, the goods in the present case were subject to duty at the rate of 15% ad valorem. The petitioner company is a large scale manufacturer and obtained licence under the Central Excises and Salt Act. It appears that for the speedy payment of excise duty and clearance of goods, which under the said Act and the Rules framed thereunder, could not be removed without payment of duty, a procedure was adopted as follows : Before clearance of goods manufactured in the factory the petitioner-company used to submit in the prescribed form, known as 'A.R.1' form, the particulars of the goods to be cleared. In that form, the petitioner-company gave the value of the goods upon which the duty was to be calculated. The value of goods under the Excise Act and the Rules read with the Finance Act, 1961 is an amount which is capable of being calculated. Roughly speaking, it is the market value, in the nearest wholesale market. At the stage, the authorities could not verify the correctness of the amounts stated, and so they accepted the valuation given and assessed the petitioner company on the valuation so given, which was in accordance with the price list that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information as regards the value, description or quality of the goods or if such information has already been furnished, pending supply of proof therefor, or (b) pending completion of any chemical or other test to which the goods may be subjected by such officer; and such officer may, at his discretion, direct that duty on such goods may be provisionally assessed and prescribe the time-limit within which the complete information, or proof of the information already furnished shall be supplied by such manufacturer, curer, owner in respect of the goods so assessed. (2) Such manufacturer, curer or owner shall execute a bond in the proper Form, with such surety or sufficient security, in such amount or under such conditions as the Collector approves, binding himself for payment of the difference between the amount of duty as provisionally assessed and that as finally assessed on receipt of such complete information or proof therefor, or of results of chemical or other tests made in respect thereof. (3) The Collector may permit the manufacturer, curer or owner of warehoused goods to enter into a general bond in the proper Form with such surety or sufficient security in such amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment of duty under Rule 9B and as there was a shortfall found later on, notice was given under the said Rule asking for payment of the amount found due. It will be observed that the two impugned notices are entitled as having been made under Rule 9B. The learned Judge in the Court below has gone into the facts and has held that there was no provisional assessment under Rule 9B, and therefore, the notices were invalid. It is not disputed that assessment and provisional assessment of duty under the said Act and Rules read with the relative Finance Act can only be in accordance with the statutory provision. These are not common law rights and, therefore, provisional assessment can only be made in accordance with the provisions of Rule 9B, because no other provision in the Act or the Rules have been brought to our attention which enables a provisional assessment to be made. Rule 9B makes it clear that a manufacturer, curer or owner of goods warehoused may ask for provisional assessment only in a case where the assessment of the goods involves 'two more alternative basis'. In such a case, he can request the proper officer to assess the goods provisionally at a lower or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Two different amounts of tax payable can be arrived at upon the same basis of calculation, upon two clauses one being the correct value and the other being the incorrect value. Here there is no "alternative" basis. I have set out above, Item 23A of the Finance Act, 1961. It will be found that there are four items mentioned there, which deal with different classes of glass and glasswares, which have different rates ranging from 5% to 15% ad valorem. I could have understood if there was any question of goods coming under one item or the other thus being subject to the "lower" rate or of the "higher" rate. If this was the dispute, and it stated that provisional assessment be made, pending determination of the heading under which the assessment was to take place, and in the meanwhile the assessment to be made at the lowest rate; that would be understandable and would be a proper subject for provisional assessment under Rule 9B. Such however, is not the case here. It is admitted that only item No. 4 is concerned, or in other words, the rate is a fixed one, namely, 15% ad valorem. That the alternative basis is wedded to rates is obvious from the penultimate wordings in sub-rule (1) of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would justify the issuing of the impugned notices. As I have stated above, the fundamental basis of Rule 9B, that is to say, the circumstance under which alone a request for a provisional assessment can be made and complied with, is absent in this case. Therefore even if the parties proceed on a mistaken notion that a provisional assessment could be made, it cannot be said that a provisional assessment has, in fact, been made under Rule 9B so that a notice can be given under sub-rule (5) thereof. Let us see, what has happened in this case. Goods were allowed to be cleared. There is no doubt that the procedure adopted was one for facilitating the turnover of goods, that is to say, to prevent the accumulation of a large amount of stocks in the factory premises. But what really happened was that Government was accepting the value put forward on behalf of the petitioner-company, taking from it an undertaking to pay the deficiency. But this does not make the assessment a provisional assessment under Rule 9B. Provisional assessment under Rule 9B is a statutory matter and must come within its four corners. One might call an assessment "provisional" in the larger or the dictionary sense, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the validity thereof. In order to decide whether the matter comes under Rule 10 or 10A, many other facts have to be taken into consideration. As I have said, some of the facts, for example, about the bond, are not available at present. We, therefore, propose to uphold the finding of the Court below with regard to Rule 9B and keep the matter open with regard to Rules 10 and 10A. The appellants have expressly issued their demand notices under Rule 9B. If these are quashed, they will proceed to take such steps as they may be advised, either under Rule 10 or 10A or otherwise, and thereupon the respondent will take such objections as it may be advised. That aspect of it should not be prematurely decided in this case. 7.The order that we will make is: We confirm the findings of the Court below on the interpretation of Rule 9B and hold that there has not been a provisional assessment in this case under that Rule, and therefore, the impugned notices and the two letters confirming them are bad and are, therefore, quashed by an appropriate writ and the appellants are restrained by an appropriate writ from interfering them or giving any effect thereon. That part of the judgment of ..... 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