M/S. THE BOMBAY DYEING AND MFG. CO. LTDNER OF CENTRAL EXCISE versus THE COMMISSIONER OF CENTRAL EXCISE

Citation: [2019] 17 S.C.R. 1057 · Decided: 09-12-2019 · Supreme Court of India · Bench: A.M. KHANWILKAR, DINESH MAHESHWARI · Disposal: Dismissed

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Judgment (excerpt)

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M/S. THE BOMBAY DYEING AND MFG. CO. LTD.
v.
THE COMMISSIONER OF CENTRAL EXCISE
(Civil Appeal No. 5297 of 2008)
DECEMBER 09, 2019
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Central Excise Act, 1944 – s.11A – If applicable to cases of
provisional assessment – Appellant, engaged in manufacture of
cotton and man-made fabrics, filed writ petitions inter alia seeking
direction that excise duty is not payable in respect of yarn
processed further in it’s composite mills in the manufacture of
fabrics – Also sought interim reliefs – Granted by High Court –
Appellant executed bonds in Form B-13 referable to r.9B, 1944
Rules and also furnished Bank guarantee (BG) for equivalent
amount of the differential duty in respect of the fabric in question
– Interim relief modified on 14.05.85 – Writ petitions disposed of
on 10/12.03.93 – Assistant Collector of Central Excise informed
the appellant that s.11A was not applicable to the facts of the
present case – Appellant asserted that the Show Cause Notice
u/s.11A was mandatory – Appellant was called upon to pay
Rs.35,92,234.67/- in view of order dtd. 14.05.85 failing which the
department was to take steps to enforce the BG – Personal hearing
given to the appellant – Demand of excise duty confirmed by
Assistant Collector of Excise – Appeals by the appellant before
appellate authorities were dismissed – High Court also dismissed
the appeal – Held: s.11A as applicable at the relevant time, would
apply to cases of recovery of duties not levied or not paid or short-
levied or short-paid etc. – Case at hand, however, would come
within the dispensation predicated by r.9B, 1944 Rules, which deals
with provisional assessment to duty – Appellant cannot be allowed
to approbate and reprobate- for inviting the High Court to pass
interim order stipulating that the appellant would execute bonds
in Form B-13 referable to r.9B of the Rules and continue to file
monthly RT-12 returns from time to time, on which endorsements
were made indicating that it is a case of provisional assessment –
Appellant cannot now be permitted to urge that it had not submitted
to the process of provisional assessment as such for lack of a
   [2019] 17 S.C.R. 1057
1057
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SUPREME COURT REPORTS
[2019] 17 S.C.R.
specific order of the concerned authority in that behalf – Stand
taken by the parties as recorded in order dtd. 10/12.03.93, is
limited to accepting the fact that if notice is required to be given,
it will be given and it will be open to the appellant to file response
and the authorities would take decision after giving opportunity
– Nothing more can be read into it – Said order in no way
extricated the appellant from the process to which it had voluntarily
submitted itself at its own volition, namely, u/r.9B of the Rules –
Thus, it was not a case of duty not levied or not paid or short-
levied or short-paid – It is certainly not an order to undo the
obligation accepted by voluntarily executing the bonds  in the
prescribed format i.e. Form B-13 referable to r.9B- to treat the
process as provisional assessment until the disposal of the writ
petitions – Also, authorities later on passed the final order after
the disposal of the writ petitions – A priori, they did not violate any
direction contained in order dtd. 10/12.03.93 and for having
proceeded in accordance with law for the period between 25.05.81
to 13/14.05.85 – Order of the High Court is to be understood in
proper perspective and not to give undue advantage to or bestow
favour on the appellant and deprive the legitimate State exchequer
– Central Excise Rules, 1944 – r.9 r/w r.49 ; r.9B – Excise Duty.
Dismissing the appeal, the Court
HELD: 1.1 In the writ petitions, the appellant had asserted
that the fabric manufactured by the appellant was not amenable
to excise duty as it was not removed from the premises within
the meaning of Rules 9 and 49 of the Rules. Indisputably, the
purport of the stated Rules has been finally answered by
Supreme Court in M/s. J.K. Cotton Spinning and Weaving Mills
Ltd. & Anr. vs. Union of India & Ors. after resolving the
conflicting opinions of different High Courts including of the High
Court of Delhi. The stand taken by the appellant in the writ
petition has been negatived by this Court, in the said decision.
Thus, the question relating to liability to pay excise duty was
not and could not have been disputed by the appellant at least
after this decision. [Para 18] [1077-C-D]
1.2 The appellant vol

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