At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE
For the Appearing Parties: Sen, Choudhury, Guha, Advocates.
TARUN CHATTERJEE, J.
(1.) In this writ application the writ petitioner has come up to this Court for a declaration that, the Textile Committee Act, 1963 is not applicable to the writ petitioner No. 1 and also for setting aside the notice dated 8th December, 1995 being Annexure "D" to the writ petition and the notice dated 9th January, 1996, 1st February, 1996 and 1st March, 1996 being collectively annexed as Annexure "F" to the writ application and also for other incidental reliefs. The notices which have been challenged in this writ application have been annexed at pages 41 to 45 of the writ application. It appears from a reading of the said demand notices that the authorities have computed a net amount payable as cess by the writ petitioners for the years 4/1975 to 12/1979 a sum of Rs. 13,533.15p. and in respect of years 1/1980 to 12/1982 a sum of Rs. 14,227.20p., in respect of years 1/1983 to 3/1990 a sum of Rs. 78,234.05 p., in respect of years 4/1990 to 3/1993 a sum of Rs. 54,348.35p. and in respect of years 4/1993 to 3/1995 a sum of Rs. 40,210/-. From a reading of the aforesaid demand notices which are challenged in this writ application it would appear that the Assessing Officer proceeded to calculate the cess payable by the writ petitioners on the ground that the writ petitioners have failed to submit monthly returns in accordance with Rule 4 of the Textile Committee Rules, 1975 (hereinafter called Cess Rules). Mr. Sen appearing on behalf of the writ petitioners, draws my attention to Rule 4 and Rule 8 of the said Rules and after taking through Rules 4 and 8 of the Cess Rules submits that it was not open to the authorities to calculate the cess payable by the writ petitioners on the basis of the balance sheet produced by them. In order to come to a proper conclusion in this matter it is necessary to reproduce Rules 4 and 8 at this stage which are as follows : "4. Submission of monthly returns :- (1) Every manufacturer shall furnish to the Committee in duplicate a return in Form A or in Form it, as the case may be for each month fully signed by him or any other person authorised by him in this behalf so as to reach the committee not later than fifteen days after the expiry of the month to which the return relates, along with a certified copy of the returns submitted to the Central Excise authorities under Rule 54 of the Central Excise Rules, 1944 for the relevant month. (2) A return referred in sub-rule (1) shall be sent by registered post with acknowledgement due. (3) Assessment when return is not furnished or furnished incorrectly etc. If any manufacturer fails to furnish the return referred to in Rule 4 within the period specified therein or furnishes a return when the Committee has reason to believe is incorrect defective, the Assessing Officer may, after giving the manufacturer an opportunity of being heard assess the amount of cess on the basis of figures obtained from the Central Excise Department or on the basis of the average of the cess levied during the previous two quarters immediately proceeding the quarters for which the assessment is being made."
(2.) Since it appears from the demand notices amend in the writ petition that the writ petitioner has not submitted the return in accordance with Rule 4 of the Cess Rules and in view of the admitted position that the computation of the amount for payment of cess was calculated on the basis of Rule 8, 1 am of the view that Rule 8 does not permit the Assessing Officer to calculate this amount for payment of cess on the basis of submission of balance sheet by the writ petitioner. From a plain reading of Rule 8 of the aforesaid Rule it is clear that the Assessing Officer in accordance with such Rule may after giving the manufacturer an opportunity of being heard assess the amount of cess on the basis of the figures obtained from the Central Excise Department or on the basis of the average of the cess levied during the previous two quarters immediately preceding the quarters for which assessment is being made. From the aforesaid demand notices it appears that none of the conditions have been taken into consideration by the Assessing Officer. He has assessed the cess payable by the writ petitioner on the basis of the balance sheet produced by the writ petitioner. Rule 8 does not confer any power on the Assessing Officer to calculate the cess on the basis of the balance sheet produced by the writ petitioner. That being the position the demand notices being Annexure "D" and "F" are quashed but this order shall not prevent the Assessing Officer from proceeding afresh in accordance with law.
(3.) Before I part with this order a submission made by the learned Counsel for the respondent should also be dealt with. Ms. Chowdhury, appearing for the respondents submits that the calculation arrived at by the Assessing Officer was on the basis of a Return filed by the writ petitioner in accordance with Rule 4 of the Cess Rules. Therefore it was open to the Assessing Officer to rely on the balance sheet produced by the writ petitioner before him/As noted hereinabove it appears from the demand notices that the Assessing Officer proceeded on the basis that the writ petitioner had failed to submit Return in accordance with Rule 4 of the said Rules. That being the position I am unable to agree with Ms. Chowdhury that the writ petitioners have complied with Rule 4 or the Cess Rules and therefore it was open to the Assessing Officer to determine and/or assess the amount of case to be paid by the writ petitioners in terms of Rule 4 of the said Rules.
(4.) Mr. Guha appearing on behalf of the Union of India however draws my attention to the fact that the writ petitioner has an alternative remedy by way of an appeal against the notices of demand under the Compilation of Textile Committee Act, 1963 where it has been provided that the appeal shall lie under Sub-section (7) of Section 5a of the Act to the Tribunal within one month of demand date on which the notice of demand regarding assessment is served on the manufacturer.
(5.) Mr. Sen appearing on behalf of the writ petitioner draws my attention to paragraph 10 in the affidavit-in-reply wherein it has been categorically stated that no Tribunal has yet been constituted under the Act and therefore the preliminary objection raised by Mr. Guha cannot be accepted. In my view Mr. Sen is justified in making such submission. Since [admittedly] no Tribunal has been constituted, the question of making an appeal to the Tribunal against the demand notices cannot arise at all. Accordingly the preliminary objection raised by Mr. Guha is overruled.
(6.) For the reasons aforesaid the demand notices which are Annexures "O" and "F" are set aside. It will be open to the Assessing O
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fficer to proceed afresh in accordance with law. If any further proceeding is started in accordance with Rules 4 and 8 of the Cess Rules, by the Assessing Officer, the writ petitioner shall produce figures which would be obtained by them from the Central Excise Department there would require for the purpose of deciding the amount of cess payable by the writ petitioners in accordance with Rule 8 of the Cess Rules. If it is found that it would not be possible to get the figures from the writ petitioners before determining and/or assessing the value, the Assessing Officer shall call for such figures himself from the Central Excise Department. (7.) All parties concerned to act on a signed copy of this dictated order on the usual undertaking.