1984 INSC 0174
                                    Shri Vivekanand Mills Ltd., and Another

                                                           Vs

                                             Union of India and Others

                                          Civil Appeal No. 1965 of 1970

                                           (D. A. Desai, V. B. Eradi JJ)

                                                      17.07.1984

                                                        ORDER

1. This appeal by certificate under Article 133(1)(a) of the Constitution granted by the High Court
of Gujarat is directed against the judgment of the High Court dismissing the Special Civil
Application 629 of 1964 filed by the present appellants in which legality and validity of the two
notices dated October 14, 1963 bearing No. 11/63 covering the period from July 15, 1963 to
October 14, 1963 making a demand of Rs. 4895.85 np and the second notice dated January 21, 1964
bearing No. 1/64 covering the period from June 28, 1962 to July 14, 1963 making a demand of Rs.
47,017.75 np were questioned on the ground that the case would be governed by Rule 10 of the
Central Excise Rules, 1944 and therefore, the notices were beyond the prescribed period of
limitation. The Union of India contested the petition contending that the case would be covered by
Rule 10-A.

2. The High Court held that the case would be governed by Rule 10-A and therefore, the contention
that the notices were beyond the period of limitation was negatived. Hence this appeal by certificate.

3. Mrs. P. S. Shroff, learned counsel for the appellants very persuasively submitted that once the
appellants were in a position to prove that gate passes were issued under Rule 52-A, it would appear
that Rule 42 was complied with implying an assessment having been made and therefore, the case
would be governed by Rule 10 and not 10-A. Consequently it was urged that the High Court was in
error in holding that the case would be governed by Rule 10-A.

4. The appellants moved the High Court soon after filing replies to the two notices but before
adjudication by the statutory authority Mrs Shroff, learned counsel for the appellants urged that in
the High Court the respondent appeared and filed a counter-Affidavit in which the relevant facts
were not disputed. She further pointed out that the fact that gate passes were issued was not
disputed. It was urged that under the scheme of the relevant rules gate pass for clearance of
excisable goods can only be issued after assessment of excise duty and payment thereof. Therefore,
it was urged that the existence of a valid gate pass would permit an inference that assessment was
completed. Proceeding along it was said that if assessment was completed ipso facto Rule 10 would
apply and the demand would be barred by limitation. We do not propose to express any opinion this
point as in our opinion the matter will have to be remitted to the authorities under the Central Excise
Act. However, for the purpose of establishing that the demand was time-barred under Rule 10 it has
to be proved that the assessment of duty has been made. Mrs Shroff urged with some vehemence
that once appellants produced the gate pass the burden would be on the respondents to show that
there was no assessment of duty prior to the issuance of the gate pass. She said that gate pass
provides tangible evidence that assessment any payment of duty were completed and the next stage
of transport of the goods was undertaken. May be that may be one view of the facts but ordinarily in
a writ petition facts are not investigated. Merely from existence of gate pass one cannot
affirmatively conclude that assessment was done. The burden is on the appellants to affirmatively
establish the same. On the materials placed before the High Court in the writ petition the High Court
was justified in holding that it was not proved to its satisfaction that assessment had been done and
High Court has rightly held that the case would be governed by Rule 10-A and not by Rule 10.
However, as the appellants have appeared in responded to the notices and the authorities under the
Central Excise Act have yet to investigate the facts alleged on either side, the question whether
notices were barred by limitation is kept open and the appellants will be at liberty to raise the
contention before the statutory authorities. In other words, that point need not be taken as concluded
by the decision in the writ petition and rejection of this appeal. With this reservation, the appeal is
dismissed with no order as to costs.

</html