The inclusion of Section 11A in the show-cause notice for final assessment of cosmetics and soap manufactured by the petitioner's different units situated in different parts of the country was inappropriate and impermissible.

K.A. SWAMI, C.J

This appeal is preferred against the order dated 27-6-1994 passed by the learned Single Judge in WP. No. 10566/94. Learned Single Judge has dismissed the writ petition holding that the contentions raised in the writ petition can be raised in the reply to the show-cause notice. Thus, the learned single Judge has not decided the contentions. In the writ petition, the petitioner sought for quashing the show cause notice dated 31-12-1992 issued by the respondent and also the further notices issued for hearing.

2.Before proceeding to consider the case, it may be necessary to refer to the developments that have taken place after the first show-cause notice dated 25-9-1990 was issued for provisional assessment. The correctness of the said show cause notice was considered by the Collector of Central Excise, Madras, in his order dated 25-2-1991. It was held by the Collector that Section 11A of the Central Excises and Salt Act, 1944, will not be relevant at the stage of provisional assessment as it pertains to escaped assessment which would arise only after the final assessment. He has also further held as follows :-

"In view of the fact that cosmetics is manufactured by different units of the same concern situated in different parts of the country, I pass the following order so that uniformity of approach can be achieved.

i) The Assistant Collector, Madras V Division in whose jurisdiction the Main Unit (Focal Point Unit) is situated shall finalise the assessments for all the issues in respect of cosmetics not only for the unit situated at Madras but also for the other units manufacturing cosmetics situated in other parts of the country for the entire period i e. from July 1985 to March 1990 overed in the show cause notice and this ensures department's interest for the Tindivanam Unit for the period from July 1985 to 31-3-1988.(ii) As regards the assessment of soap manufactured by the unit situated at Pondicherry, I direct the Assistant Collector of Central Excise, Pondicherry, to finalise the assessment for all the issues for the commodity soap.

It is open to the Assistant Collectors concerned to initiate fresh proceedings as deemed fit in accordance with law in respect of the alleged under valuation as contained in this show cause notice at the time of the finalisation of the provisional assessment. It is equally open to the assessee to place their submissions before the Assistant Collectors.

ORDER

In view of the above, I drop the proceedings initiated in this Office Show Cause Notice C. No. V/33/15/5/90-Cx.Adj./SCN No. 11/90 dated 25-9-1990'.

Pursuant to the aforesaid order, the second show cause notice dated 30-12-1991 was issued. At the same time, the Department went up in appeal against the aforesaid order of the Collector of Central Excise before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (For short, CEGAT). The appeal was filed at the instance of the Board. In the appeal (E/Appeal No. 2344/92-A), the CEGAT held as follows :"

The view expressed by the Bombay High Court has also been endorsed by the Supreme Court while disposing of the SLP against that decision wherein the Supreme Court has observed,

"The material contained in the impugned notice could be used as independent material to support the final assessment, ofcourse, after affording an opportunity to the respondents to meet the case . . .. This, the petitioners could do as part of the proceedings for assessment and as implicit in and incidental to it . . .. In effect, therefore, the Collector in his order has, rightly, in our view, held that it was for the Department to first finalise all the assessments in this case which were found to be only provisional and, thereafter, only would come the stage of duty demand applying the relevant date for the purpose prescribed under Sec. 11A(3)(ii)(b), Central Excises & Salt Act, 1944. The Collector's order on this aspect, therefore, needs no modification. As for the modality of finalisin