TMI Blog1998 (3) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... In the result, we allow this appeal and set aside the impugned judgment. We hold that recovery of excise duty for yarn from the appellant for the period between 1-4-1981 and 5-12-1981 is barred by the period of limitation prescribed in Section 11A of the Act. - 1735-36 of 1989 - - - Dated:- 4-3-1998 - M.M. Punchhi, CJI, K.T. Thomas and M. Srinivasan, JJ. [Judgment per : K.T. Thomas, J.]. - The moot point in this appeal is this : Whether the period of six months envisaged in Section 11A of the Central Excise Act, 1944 (for short `the Act'), for issuing show cause notice, stood extended by any further period so as to enable the Revenue to scale over the hurdle of limitation? Respondent (Revenue) advanced two alternative premises in support of the plea that the said period of six months stood extended. First is, there was only a provisional assessment and hence the `relevant date' for issuing the show cause notice could be counted only from final assessment. Second is that an order of stay issued by the High Court of Delhi on 12-8-1981 (sic) virtually amounted to a bridle against issuing show cause notice and hence the period stood extended by the entire time when the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India and Others - 1987 (32) E.L.T. 234 = (AIR 1987 SC 191). A three-judge Bench of this Court in that decision upheld the validity of the amendments to Rules 9 and 49 besides upholding the retrospectivity granted to the provisions as per Section 51 of the Finance Act, 1982. 4.However, in order to allay the apprehension of the assessees that the judicial imprimatur accorded to the long distant retrospectivity to Rules 9 and 49 of the Central Excise Rules would precipitate them to unbearable financial burden, their Lordships put a rider that the retrospective effect "must be subject to the provisions of Section 11A of the Act". 5.It is advantageous at this stage to read Section 11A of the Act : "11A.Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression of facts, the period of six months will stand stretched up to five years. The second eventuality is, if the original assessment was provisional, in which case the period would start running only from the date of final assessment. The third is, if the service of show cause notice on the person chargeable with duty is stayed by a Court, in which case the entire period of stay shall be excluded from computing the aforesaid limitation time. 7.The first eventuality mentioned above has no application to the facts of this case and hence a discussion on that can conveniently be skipped. Regarding the second contingency, though the department pleaded that only a provisional assessment was made, that plea was repelled by CEGAT in reversal of a finding made by the Assistant Collector as well as the Collector (Appeals). It is the third contingency which the Revenue has alternatively relied on which secured approval from CEGAT. 8.Before we proceed to consider the merits of the case, we have to deal with a preliminary objection raised by the Revenue regarding maintainability of this appeal. In the appeal petition it is stated that the appeal is filed under Section 35L(b) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urportedly in interpretation of Rule 9 of the Central Excise Rules. As per the said circular, the Collector of Central Excise was required to specify in addition to the place where excisable goods are produced or cured or manufactured, premises appurtenant thereto, if necessary, and to take immediate steps to ensure approval to the place of production, and to delegate the powers of the Collector under Rule 9(1) to the licensing authorities; and further to demand the assessee to submit fresh ground plans etc. 14.The appellant had moved a petition in the writ application for an order of stay in terms of prayer (a) thereof which consisted of the following limbs : Stay permitting the petitioners to process yarn within its factory without payment of duty; restraining respondents from giving effect to the contents of the directive of the Board dated 24-9-1980; and to stay further proceedings pursuant to notices dated 4th and 5th May, 1981 relating to the period 6-11-1980 to 31-3-1981. 15.The High Court of Delhi has allowed the said petition on 12-8-1981 in terms of the said prayer. The contention which the Revenue pressed into service before CEGAT and which was found acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to find a way out to salvage those provisions by minimising the gravity of the hardship on the assessees. That endeavour resulted in the judicial pronouncement in J.K. Spinning and Weaving Mills (supra) by placing those provisions subject to the time limit fixed under Section 11A. 20.If the said rider was not imposed by this Court as per the decision in J.K. Cotton Spinning and Weaving Co. case (supra), what would have been the fate of Rules 9 and 49 (as amended) in the wake of the challenge to its vires cannot now be re-examined. Whatever it be, the fact remains, that Rules 9 and 49 survived the challenge when this Court nailed their sweep to the limitation specified in Section 11A. Hence that limitation period should not be stretched more than the elasticity supplied in the Section itself. So, in our opinion, the eventuality envisaged in Section 11A for the further lengthening of the limitation period must be strictly construed. 21.The notice envisaged in sub-section (1) of Section 11A of the Act can be issued under any one of the four conditions : when duty of excise has not been levied on the commodity; when such duty has been short-levied; or when such duty, tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal on the footing of the principle adumbrated in Order 41 Rule 22 of Civil Procedure Code, 1908. Shri Joseph Vallapalli, learned Senior Counsel opposed reopening the said finding on the premise that in this appeal, even after it is treated as one by special leave under Article 136 of the Constitution, the points raised by the appellant alone can be canvassed. 25.A three-judge Bench of this Court in Vashit Narain Sharma v. Dev Chandra and Others, 1955 (1) SCR 509 did not permit a respondent, in an appeal filed by special leave under Article 136 to support the decision challenged in the appeal on a ground which had been found against him. The Court held that the corresponding provision in the Civil Procedure Code has no application to an appeal filed by special leave under Article 136. 26.The aforesaid decision was cited before another three-judge Bench in the case of Sri Baru Ram v. Shrimati Prasanni and Others, 1959 SCR 1403 where it was not dissented from. But in the light of the decision of the Constitution Bench of this Court in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Others, 1965 (1) SCR 712, the ratio adopted in the earlier mentioned two decisions is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 29.Shri Gauri Shankar Murthi, in order to surmount a difficult situation confronted by the aforesaid Rule 9B of the Central Excise Rules adopted a new contention as under :- Rule 9B was incorporated in the Central Excise Rules with effect from 1-8-1959 whereas the `Self Removal Procedure' by manufacturers themselves has been introduced in the Rules with effect from 14-7-1969 which provides for a self assessment, the finalization of which could be made as indicated in Rule 173F. Learned Counsel contended that with the introduction of the said procedure a self removal by itself would amount to provisional assessment. In support of the contention, learned Counsel cited the decision of this Court in Seraikella Glass Works v. Collector of Central Excise, Patna [1997 (91) E.L.T. 497] wherein implication of a self-assessment has been considered and held it to be nothing but a provisional assessment which is subject to final assessment. 30.Shri Joseph Vallapalli, learned Senior Counsel for the appellant pointed out, in reply to the said contention, that the concept of provisional assessment adverted to in Section 11A has a connotation which can be traced in Rule 9B which requires ..... X X X X Extracts X X X X X X X X Extracts X X X X
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