N.D. Ojha, J.
1. The petitioners in these two writ petitions are agriculturists and cultivate apart from other crops tobacco also. They even cure the tobacco. It is not disputed that the tobacco produced by the petitioners was an excisable commodity as an unmanufactured product during the years in question, namely, 1977-78 and 1978-79. In pursuance of recovery certificates issued in this behalf certain amount of excise duty was sought to be recovered from the petitioners and for that purpose necessary citations were issued in the month of March, 1984. By these writ petitions the recovery proceedings including the citations mentioned above have been, challenged.
2. The respondents in the writ petitions are represented by their Standing Counsel. No other private party is to be served with the notice of the writ petitions. Counter and rejoinder-affidavits have already been filed and we are of opinion that these are fit cases which may be finally disposed of at this very stage as contemplated by the second proviso to Rule 2 of Chapter XXII of the Rules of Court. We have accordingly heard counsel for the parties on the merits of these writ petitions.
3. It has been urged by counsel for the petitioners that since no notice within the period prescribed under Rule 10 of the Excise Rules, 1944 (hereinafter referred to as the Rules), as they stood at the relevant time which is subsequently incorporated in Section 11-A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), was issued to the petitioners, the recovery of the amounts mentioned in the citations have become time-barred and consequently the respondents have no jurisdiction to recover the same.
4. Having given our anxious consideration to the aforesaid submission we find it difficult to agree with the same. In the counter-affidavits filed in these two writ petitions it has specifically been stated that orders of assessment had been passed against the petitioners in regard to the years in question. We have no reason to doubt the facts stated in this behalf in the counter-affidavits. The position, therefore, is that even though orders of assessment were passed against the petitioners in regard to the years in question the amount assessed and payable by the petitioners as excise duty was not paid by them with the result that proceedings for recovery as mentioned above had to be initiated. Rule 10 of the Rules as substituted by G.S.R. 554(E), dated 6th August, 1977, was the relevant rule which was applicable during the years in question namely 1977-78 and 1978-79. Sub-rule (1) of Rule 10 of the Rules on which alone reliance has been placed by counsel for the petitioners reads as follows :
'10. Recovery of duties not levied or not paid, or short-levied or not paid in full or erroneously refunded :-
(1) Where any duty has not been levied or paid or has been short-levied or erroneously refunded or any duty assessed has not been paid in full, the proper 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 to whom the refund has erroneously been made, or which has not been paid in full, requiring him to show cause why he should not pay the amount specified in the notice :-
(a) where any duty has not been levied or paid or has been short-levied or has not been paid in full, by reason of fraud, collusion or any wilful mis-statement or suppression of facts by such person or his agent, or
(b) where any person or his agent contravenes any of the provisions of these rules with intent to evade payment of duty and has not paid the duty in full, or
(c) where any duty has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by such person or his agent, the provisions of this sub-rule shall, in any of the cases referred to above, have effect as if for the words 'six months', the words 'five years' were substituted.
5. Section 11-A was inserted in the Act by the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (No. 25 of 1978). The date from which the provisions of Section 11-A were to come into force was appointed as 17th November, 1980, vide Notification No. 182/80-C.E., dated 15th November, 1980. Sub-section (1) of Section 11-A which purports to incorporate the provisions of Rule 10 mentioned above reads as follows ;
'11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded-
(1) 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, requiring him to show cause why he should not pay the amount specified in the notice :
Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason , of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words 'six months', the words 'five years' were substituted.
6. The statements and objects for inserting Section 11-A as is to be found from the note appended to the corresponding Bill No. 149 of 1977 in so far as it relates to Section 11-A reads -
Clause 24-This clause seeks to insert new Sections 11A, 11B and 11C in the Central Excises and Salt Act. Section 11A seeks to incorporate in the Act the existing provisions contained in the Central Excise Rules relating to recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded...'
7. Section 11 of the Act which deals with recovery of sums due to Government has not undergone any change ever since it was enacted, except that by Central Boards of Revenue Act, 1963 the words 'Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963' were substituted for the words 'Central Board of Revenue'. This section does not prescribe any limitation for recovery of 'duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder'. It is in this background that the submission made by counsel for the petitioners has to be considered.
8. A short history of Rule 10 which was ultimately incorporated in Section 11A of the Act will be necessary to appreciate the controversy raised in these writ petitions. Rule 10 of the Rules as it stood earlier was in the following terms :
'(1) Recovery of duties or charges short-levied, or erroneously refunded-
When duties or charges have been short-levied through inadvertence, error, collusion or mis-construction on the part of an officer, or through mis-statement, as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short-levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners account-current, if any, or from the date of making the refund.
In N.B. Saniana v. E.S. & W. Mills, AIR 1971 S.C. 2039 this Rule 10 came up for consideration before the Supreme Court. In that case in regard to the goods manufactured by the respondent a notification had been issued under Rule 8 exempting the same wholly from excise duty. Even though an order of assessment was passed in regard to the said goods in the appropriate portion of the relevant forms the amount of duty payable was shown as 'nil' obviously because of the exemption. Subsequently, the excise authorities appear to have entertained some doubt about the goods aforesaid being covered by the exemption and issued notices requiring the respondents to pay a certain sum as duty. These notices were challenged on the ground that they not having been issued within the time stipulated by Rule 10 were barred by time. It was pointed out that Rule 10 applied only to cases where assessment had been made but the duty had been short-levied. In this connection it was held :'It follows that in order to attract Rule 10, it is not necessary that some amount of duty should have been assessed and that the said amount should have also been actually paid. That provision will apply even to cases where there has been a nil assessment in which case the entire duty later on assessed must be considered to be the duty originally short-levied.'
9. The same very Rule came up for consideration before the Supreme Court again in Asstt. Collector, Central Excise v. N.T. Co. of India Ltd. - AIR 1972 S.C. 2563. The following propositions of law were laid down therein :
'The term 'levy' appears to us to be wider in its import than the term 'assessment'. It may include both 'imposition' of a tax as well as assessment. The term 'imposition' is generally used for the levy of a tax or duty by legislative provisions indicating the subject-matter of the tax and the rates at which it has to be taxed. The term 'assessment', on the other hand, is generally used in this country for the actual procedure adopted in fixing the liability to pay a tax on account of particular goods or property or whatever may be the object of the tax in a particular case and determining its amount. The Division Bench appeared to equate 'levy' with an 'assessment' as well as with the collection of a tax when it held that 'When the payment of tax is enforced, there is a levy'. We think that, although the connotation of the term 'levy' seems wider than that of 'assessment', which it includes, yet, it does not seem to us to extend to 'collection'. Article 265 of the Constitution makes a distinction between 'levy' and 'collection'.
* * * *'We think that Rule 10 should be confined to cases where the demand is being made for a short-levy caused wholly by one of the reasons given in that rule so that an assessment has to be re-opened.'
10. That very Rule came up for consideration in a recent decision of the Supreme Court in Sri Vivekanand Mills Ltd. v. Union of India, AIR 1984 S.C. 1779. It was held that for the purpose of establishing that the demand was time-barred under Rule 10 it has to be proved that the assessment of duty had been made and the burden is on the assessee to affirmatively establish the same.
11. So Rule 10 as it stood prior to 1967 has been interpreted to apply to those cases where an assessment was made but either there was no levy in the sense of nil assessment due to exemption or otherwise or there was short-levy in the sense of duty payable having been determined at a lesser amount and subsequently the assessment was sought to be re-opened, It could .not apply to those cases where, as in the instant cases, a correct assessment had been made which was not at all sought to be re-opened but only the amount assessed was sought to be realised, the same not having been paid by the person from whom it was payable. For recovery of such amount there was no limitation as is clear from Section 11 of the Act.
12. Rule 10 as substituted by G.S.R. 554(E), dated 6th Aug., 1977 makes explicit what was implicit in the word 'short-levied' used therein prior to its being substituted as aforesaid namely that it applied even to a case of 'nil' assessment. It, however, continued to apply only to those cases where there had been either no levy in the sense of a 'nil' assessment or short-levy and the earlier assessment was sought to be re-opened. It too did not apply to those cases where an earlier assessment was not sought to be re-opened but only the assessed amount was sought to be realised for which no limitation had been prescribed in Section 11 of the Act.
13. Indeed Sub-rule (2) of Rule 10 as substituted by G.S.R. 554 (E), dated 6th August, 1977, itself substantiates the view that Rule 10 applied only to cases where an earlier assessment was sought to be re-opened as this sub-rule contemplated a fresh determination of the amount of duty due which is tantamount to making a fresh assessment consequent upon the earlier assessment being re-opened. This Sub-rule (2) read as follows :
'(2) The Assistant Collector of Central Excise shall, after considering the representation, if any, made by the person on whom notice is served under Sub-rule (1), determining the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.'
Similar is the language of Sub-section (2) of Section 11A except that the words 'served under Sub-rule (1)' the words 'served under Sub-section (1)' have been used therein.
14. Counsel for the petitioners then urged that since Rule 10 as applicable at the relevant time used the words 'or not paid' after the words 'not levied' and also used the words 'any duty assessed has not been paid in full' the said Rule applied even to those cases where even though assessment had been made the amount assessed had not been paid. We find it difficult to agree with this submission. The words 'any duty assessed has not been paid in full' used in Rule 10 in our opinion have the same meaning as the word 'short-paid' used in Section 11A(1) after the words 'short-levied or' for otherwise the words 'or not paid' used in Rule 10 after the words 'not levied' would become redundant. In our opinion, there was no ambiguity in this behalf in Rule 10 but if there was any it stands clarified by the Statement of Objects and Reasons for incorporating Rule 10 in Section 11A of the Act. It while referring to the rule concerned in place of using the words 'any duty assessed has not been paid in full' use the words 'short-paid'.
15. As regards the word 'or' used after the words 'not levied' and before the words 'not paid' and in the beginning of the expression 'any duty assessed has not been paid in full' we are of opinion that in the context in which the said word 'or' has been used namely reopening of assessment it has to be read as meaning 'and'. In Maragaon Deck Ltd. v. Commissioner of Income-tax and Excess Profits Tax, AIR 1958 S.C. 861 it has been held that when the use of the word 'or' appears inappropriate and susceptible of an interpretation that could not have been intended the word 'or' would have to be read in the context as meaning 'and'.
16. Since the limitation contemplated by Rule 10 and now Section 11A of the Act was provided for reopening an assessment and not for recovery of the assessed dues without reopening the assessment to which Section 11 applies which prescribes no limitation, it is obvious that the interpretation sought to be placed by counsel for the petitioners on the aforesaid 'or' could never have been intended.
17. In the instant cases, since the earlier assessments arc not sought to be re-opened but the already assessed amounts alone are sought to be recovered from the petitioners it is not possible to accept the submission of the counsel for the petitioners that the recovery proceedings and the citation issued in this behalf are barred by time.
18. In view of the foregoing discussion we find no merit in these writ petitions and they are accordingly dismissed but in the circumstances of the case there shall be no order as to costs.