TMI Blog1983 (2) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... w materials such as wax and splints. Another discrepancy related to the consumption of veneers which was higher than the normal consumption during the months ot January, February, March and April, 1969. From the accounts it was noticed that the appellant had produced 422 gross of matches with 459 Kgs. of chlorate allotted to him for the manufacture of matches. The factory was not working during the months of May to December, 1969. Since the appellant did not satisfactorily account for the use of more chlorate and the higher consumption of veneers, he was called upon to show cause under Rule 173-E of the Central Excise Rules. After getting his explanation and considering the same, the Assistant Collector of Central Excise, Sivakasi exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action under that provision, action could be taken for violation of Rule 173-E under Rule 173-G at any time. In that view the learned Judge held that the impugned levy is perfectly valid. The said decision of Mohan, J. has been challenged in this writ appeal. 5. According to the learned counsel for the appellant, the learned single Judge has overlooked the provision in Rule 173-J which was in force at the relevant time and which attracts Rule 10 and, therefore, action under Rule 173-G should be taken within the time limit prescribed in Rules 10 and 11. It is not in dispute that action has been taken under Rule 173-E read with Rule 173-G. Rule 173-E provides for the mode of determination of the normal production which can be taken as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne a material change : Provided that the norm as determined by the Officer empowered as aforesaid shall not be revised to the disadvantage of the assessee unless such assessee has been given a reasonable opportunity of being heard." 6. Rule 173-J has prescribed the same time limit as in Rules 10 and 11 for recovery of short-levy as is determined under Rule 173-E. According to the assessee the inspection took place in the year 1969 and the show cause notice was issued on 21-9-1972 and the norm of production was fixed as part of the impugned assessment on 25-5-1973 and the short levy as determined by the Assistant Collector based on the norm or the normal production in relation to the period between January to April, 1969 will be barred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urcharges. In my opinion, the second contention has been raised solely because the department had committed the mistake of issuing notices under rule 10 and withdrawing them subsequently. The mistake committed by the department is clutched at by the petitioner to project a contention that a completed assessment had taken place and as such, it was entitled to a show cause notice before the differential duty was claimed." We find from the said decision that there was no final assessment but only a provisional or tentative assessment of the excise duty on the goods removed as per the cost particulars given by the manufacturer and that later a revised demand was issued on the cost particulars furnished by the manufacturer. Thus that was a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment has been struck off and the assessment has been made final on the returns filed by the assessee for the concerned four months, we have to proceed on the basis that there has been a final assessment and the amount sought to be collected can only be treated as short-levy. 8. The learned counsel for the respondents relies on the decision of a Division Bench of this Court in Secretary to the Government of India v. Loganathan (1976 II M.L.J. 295). In that case there was an inspection of the place of manufacture on 28th May, 1965 and on the basis of the discovery of certain shortage, a show cause notice was issued on 21-12-1967. Subsequently an assessment was made on 16th May, 1968. The demand was challenged on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption of chlorite and veneers and determined the duty payable under Rule 173-E read with Rule 173-G. We, therefore, feel that the said decision of the Bombay High Court has no application. The position might be different after rule 173-J has been deleted later, but during the relevant period the said rule was there and as per the said rule, rule 10 stands automatically attracted and as per rule 10 the demand should have been made within three months of the date when the duty was charged or paid. In this case the duty was paid in 1969 and the short levy was determined and fixed on 25-5-1973 nearly four years afterwards. We have therefore to disagree with the view taken by the learned single Judge and hold that the impugned levy in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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