TMI Blog1973 (3) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ised procedure for self-removal of excisable goods the licensees had to determine the amount of duty payable and could clear as much excisable products as he liked. At the end of the month he was required to submit a return in form RT 12 showing, inter alia, the quantity of goods cleared and the total amount of duty paid thereon. Such returns were submitted to the Superintendent, Central Excise, S.R.P. Range, Dalmianagar, respondent No. 1 in accordance with the Rules. There was a difference of opinion between him and the petitioner regarding assessable value of the caustic soda lye as and when the monthly return was submitted to him. According to respondent No. 1 the duty paid by the petitioner was short and, therefore, in the endorsement on the monthly return - RT 12 - he directed the petitioner to pay the duty at the enhanced rate. The sum so demanded by respondent No. 1 came to a figure over Rs. 30,000. The petitioner, under Section 35 of the Act, filed several appeals before the Collector of Central Excise, challenging the order of the Superintendent demanding more excise duty on caustic soda lye. At the time of the filing of the writ application, those appeals were pending as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills. The debits were made in exercise of the power of respondent No. 1 under Section 11 of the Act. The extra debit to the tune of Rs. 1,042/60, as alleged by the petitioner in the writ application, was explained thus. The total demand in regard to ten items was to the tune of Rs. 30,870/68. The petitioner filed appeals before the Collector only as against seven items and paid the extra demand in three items, the total of which was Rs. 761/41. Thus, the deficiency to the tune of Rs. 30,109/27 remained. A sum of Rs. 1,042/60 was claimed on some different account and thus the total debit amount of Rs. 31,151/87 was justified, according to the stand in the counter-affidavit. In paragraph 16 of the counter-affidavit it is explained how the power under Section 11 of the Act was exercised by the authority in the following terms :- "In the instant case M/s R.I. Ltd. Dalmianagar were maintaining several P.L.As. for different commodities. The sums deposited in their various P.L.As. from time to time were credited in the name of the Collector of Central Excise, Patna. Any amounts lying in balance in the various P.L.As. could not be appropriated by the petitioner firm of his own accord but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, they are the only relevant Rules some of which will be specifically referred to in this judgment. The heading of Chapter VII A is— "Removal of excisable goods on determination of duty by producers, manufacturers or provide warehouse, licensees". The provisions of Chapter VII A are to apply to such excisable goods as the Central Government may, by notification in the Official Gazette, specify in this behalf, under Rule 173A. Under Rule 173B the assessee would file the list of goods for approval of the proper officer and he has to file a price list of goods assessable ad valorem under Rule 173C. The assessee is under an obligation to furnish information regarding principal raw material under Rule 173D. The normal production is to be determined under Rule 173E. Then Rule 173F says— "Where the assessee has complied with the provisions of Rules 173B, 173D, and , where applicable, 173C, he shall himself determine his liability for the duty due on the excisable goods, intended to be removed and shall not, except as otherwise expressly provided in these rules, remove such goods unless he has paid the duty so determined." What procedure the assessee is to follow is provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Then it is the obligation of the assessee to pay the deficiency, if any, by making a debit in the account-current within ten days of the receipt of the return from the proper officer and where the amount paid is in excess, the assessee has to make a credit entry in that account. It would thus be seen that the account which is to be maintained by the assessee on his own provisional assessment of the amount of duty payable is subject to the control of the proper officer. To put it in other words, the scheme is like this. The assessee has to put sufficient amount in deposit in treasury in the account-current with the Collector. From that amount in credit, he can go on adjusting the amounts of duty payable by him on his own assessment. But finally the assessment is to be made by the proper officer and according to that final assessment the assessee has to make debit or credit entries in the accounts maintained by him under Rule 173G. The rules, so far I have examined, do not provide that if the assessee fails to pay the deficiency by making a debit entry in the account-current within ten days of the receipt of copy of the return from the proper officer then the proper officer c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward would treat the amount of deposit only at Rs. 20,000. If he does so then the assessee in order to carry on his business further, in accordance with Chapter VII A, would be obliged to show in his account books the sum of deposit, as determined by the proper officer. From a practical point of view, the same result can be achieved but by the legal and legitimate method just indicated. Instead of following this legitimate and legal method, respondent No. 1 adopted a course of making the entries himself which are annexures 3 to 6 in this case a method which was not warranted by law. In annexure 1 he had rightly asked the assessee to debit the amount by 22-2-70, namely, the period of ten days counting from the date of the letter. On failure of the assessee he had a right to recover the sum in the mode indicated in the second paragraph of annexure 1 if it is permissible in law, or to adopt any other method including the one indicated by me above. But then I do not feel persuaded to hold on failure of the assessee to debit the amount in accordance with Rule 173-I (2), the proper officer had a right to do so. 7.Learned Counsel for the petitioner, in support of his submission that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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