Judgment N.L.Untwallia, J. 1. In this writ application is involved some interesting question of law though technical, which in ultimate analysis may not be very substantial. The sole petitioner in this case - Rohtas Industries Limited - is a company incorporated under the Companies Act. It owns various factories at Dalmianagar in Bihar where various types of goods are manufactured. It owns a Chemical Factory where caustic soda lye is manufactured, on which is payable from time to time excise duty at specified rates. It also owns an Acid Factory, a Vanaspati Factory and a Soap Factory wherein also various goods chargeable to excise duty are manufactured. Under the Central Excise and Salt Act, 1944 (hereinafter called the Act) were framed the Central Excise Rules , 1944 (hereinafter called the Rules). From time to time the Rules were amended. The petitioners case is that as per instructions contained in the revised procedure for self-removal of excisable goods the licensees had to determine the amount of duty payable and could clear as much excisable products as he liked. At the end of the month he was required to submit a return in form RT 12 showing, inter alia , the quantity of goods cleared and the total amount of duty paid thereon. Such returns were submitted to the Superintendent, Central Excise, S.R.P. Range, Dalmianagar, respondent No. 1 in accordance with the Rules. There was a difference of opinion between him and the petitioner regarding assessable value of the caustic soda lye as and when the monthly return was submitted to him. According to respondent No. 1 the duty paid by the petitioner was short and, therefore, in the endorsement on the monthly return - RT 12 - he directed the petitioner to pay the duty at the enhanced rate. The sum so demanded by respondent No. 1 came to a figure over Rs. 30,000. The petitioner, under Section 35 of the Act, filed several appeals before the Collector of Central Excise, challenging the order of the Superintendent demanding more excise duty on caustic soda lye. At the time of the filing of the writ application, those appeals were pending as stated in paragraph 4, but we were informed at the Bar that all the appeals have now been disposed of and some relief has been given to the petitioner. At the time of the filing of the writ application, those appeals were pending as stated in paragraph 4, but we were informed at the Bar that all the appeals have now been disposed of and some relief has been given to the petitioner. Be that as it may, the further fact to be stated at this stage is that respondent No. 1 wrote to the petitioner a letter on 13-2-70 to clear the Government dues, failing which he threatened to attach and sell the excisable goods belonging to the petitioner. A true copy of this letter is annexure 1 to the writ application. The petitioner sent a reply dated 18-2-70 stating that it had already filed appeals and, therefore, was unable to carry out the directions given in annexure 1 and asked the Superintendent, respondent No. 1, to stay the realization of the demand. Respondent No. 1, however, reiterated his demand in his letter dated 25-2-70 (annexure 2). On the same date he visited different factories of the petitioner one after another, demanded personal ledger account maintained in the different units and debited the amount, as detailed in paragraph 8 of the writ application. In the personal ledger account of the various four factories, the total amount debited came to Rs. 31,151/87 as against the amount of Rs. 30,870/41 demanded in annexure 1. The petitioners case is that as per amended rules which were brought into existence by the 10th Amendment and the 12th Amendment without a show cause notice no demand for excess demand duty could be finalised and no steps could be taken to realise the demand. Its further case is that in any view of the matter respondent No. 1 had no authority or jurisdiction to make debit or adjustment entry in the accounts maintained in the various four units of the petitioner upon these allegations which I have stated in nut-shell the petitioner has prayed for quashing of the debit entries made by respondent No. 1 in personal ledger accounts of the various factories which are annexures 3 to 6 to the Writ application. 2. A counter-affidavit has been filed on behalf of the respondents. 2. A counter-affidavit has been filed on behalf of the respondents. To state briefly, the stand taken in the counter- affidavit is that the demand of extra excise duty made by respondent No.1 was justified, this was not a case which was covered by the amended Rule 10 or 10A but it was a case which was covered by Rule 9B of the Rules. The statement in the monthly return filed by the Chemical Factory of the petitioner in form RT 12 differed from the price charged in the bills. The debits were made in exercise of the power of respondent No. 1 under Section 11 of the Act. The extra debit to the tune of Rs. 1,042/60, as alleged by the petitioner in the writ application, was explained thus. The total demand in regard to ten items was to the tune of Rs. 30,870/68. The petitioner filed appeals before the Collector only as against seven items and paid the extra demand in three items, the total of which was Rs. 761/41. Thus, the deficiency to the tune of Rs. 30,109/27 remained. A sum of Rs. 1,042/60 was claimed on some different account and thus the total debit amount of Rs. 31,151/87 was justified, according to the stand in the counter-affidavit. In paragraph 16 of the counter-affidavit it is explained how the power under Section 11 of the Act was exercised by the authority in the following terms :- In the instant case M/s R.I. Ltd. Dalmianagar were maintaining several P.L.As. for different commodities. The sums deposited in their various P.L.As. from time to time were credited in the name of the Collector of Central Excise, Patna. Any amounts lying in balance in the various P.L.As. could not be appropriated by the petitioner firm of his own accord but for such purpose the petitioner has only to apply to the proper Central Excise Officer in the usual manner, for the return thereof. Consequently the Superintendent of Central Excise, Dalmianagar, was quite competent to recover the Government dues by way of adjustment in the P.L.As of the petitioner firm. Since the balance in the P.L.A. of the caustic soda lye Factory only of the petitioner on 25-2-1970 was just Rs. 7,893.11 P., and was, accordingly insufficient to cover the entire duty demand amounting to Rs. 31,151.87 paise, the remaining balance of Rs. Since the balance in the P.L.A. of the caustic soda lye Factory only of the petitioner on 25-2-1970 was just Rs. 7,893.11 P., and was, accordingly insufficient to cover the entire duty demand amounting to Rs. 31,151.87 paise, the remaining balance of Rs. 23,258.16 P. was deducted from the balance available in other P.L.As. maintained by the petitioner firm for other commodities namely, Acid, Vanaspati and Soap. 3. The questions which call determination in this case are : - (i) Whether the debit entries (annexures 3 to 6) could be made by respondent No. 1 in the accounts maintained by the petitioner in its various factories in exercise of his power under Section 11 of the Act? (ii Whether the demand in respect of the Chemical Factory could be ralised by adjustment and the making of the debit entries in the accounts of the other three factories? 4. Rule 9B deals with provisional assessment of duty. But this provisional assessment is to be made by the proper officer and not by the assessee himself. The matter of recovery of duties or charges short-levied or erroneously refunded is dealt with in Rule 10 and residuary powers for recovery of sums due to Government are provided in Rule 10A. By notification dated the 11th October, 1969, 12th Amendment of the Rules was introduced whereby Rules 10 and 10A were amended. The purpose of this amendment is mentioned in a copy of the letter dated the 30th September, 1969 (annexure 13) from the Ministry of Finance, Department of Revenue and Insurance, to all Collectors of Central Excise. The amended Rule 10A provided for giving of a notice of show cause to the assessee in the matter of deficiency of duty. But it would be noticed from the language of Rules 10 and 10A even as it stood after the 12th Amendment that they do not apply to a case which is covered by the Rules incorporated in Chapter VII A introduced for the first time in the Rule on 14-7-1969. That is the relevant Chapter, which deals with clearance of goods on provisional determination of the excise duty payable by assessee himself. And, as I read these Rules, they are the only relevant Rules some of which will be specifically referred to in this judgment. That is the relevant Chapter, which deals with clearance of goods on provisional determination of the excise duty payable by assessee himself. And, as I read these Rules, they are the only relevant Rules some of which will be specifically referred to in this judgment. The heading of Chapter VII A is Removal of excisable goods on determination of duty by producers, manufacturers or provide warehouse, licensees. The provisions of Chapter VII A are to apply to such excisable goods as the Central Government may, by notification in the Official Gazette, specify in this behalf, under Rule 173A. Under Rule 173B the assessee would file the list of goods for approval of the proper officer and he has to file a price list of goods assessable ad valorem under Rule 173C. The assessee is under an obligation to furnish information regarding principal raw material under Rule 173D. The normal production is to be determined under Rule 173E. Then Rule 173F says Where the assessee has complied with the provisions of Rules 173B, 173D, and , where applicable, 173C, he shall himself determine his liability for the duty due on the excisable goods, intended to be removed and shall not, except as otherwise expressly provided in these rules, remove such goods unless he has paid the duty so determined. What procedure the assessee is to follow is provided in Rule 173G. Under sub-rule (1) he is to keep an account- current with the Collector separately for excisable goods falling under different items of the First Schedule to the Act, in such form and manner as the Collector may require of the duties payable on the excisable goods. He is required to maintain a triplicate account by using indelible pencil and double-sided carbon. He has to make periodically credit in such account-current, by cash payment into the treasury or by cheque if the Collector so specifies. Thereafter in the various other sub-rules of Rule 173G a procedure has been prescribed for removal of the goods. Under sub-rule (5) every assessee has to furnish to the proper officer a list in duplicate of all accounts maintained and returns prepared by him in regard to the production, manufacture, storage, delivery of disposal of the goods, including the raw materials. The return has to be filed in a proper form under sub-rule (3). Under sub-rule (5) every assessee has to furnish to the proper officer a list in duplicate of all accounts maintained and returns prepared by him in regard to the production, manufacture, storage, delivery of disposal of the goods, including the raw materials. The return has to be filed in a proper form under sub-rule (3). The assessee is obliged to produce on demand to the Central Excise officer or the audit parties deputed by the Collector the accounts and returns for the scrutiny of the officers or the audit parties as the case may be under Rule 173G (6). I shall quote Rule 173 - I. (1) The proper officer shall on the basis of the information contained in the return filed by the assessee under sub- rule (3) of Rule 173G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be sent to the assessee. (2) The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise. The proper officer is to assess the duty due on the goods removed and complete the assessment memorandum on the return filed by the assessee. A copy of the return so completed has to be sent to the assessee. Then it is the obligation of the assessee to pay the deficiency, if any, by making a debit in the account-current within ten days of the receipt of the return from the proper officer and where the amount paid is in excess, the assessee has to make a credit entry in that account. Then it is the obligation of the assessee to pay the deficiency, if any, by making a debit in the account-current within ten days of the receipt of the return from the proper officer and where the amount paid is in excess, the assessee has to make a credit entry in that account. It would thus be seen that the account which is to be maintained by the assessee on his own provisional assessment of the amount of duty payable is subject to the control of the proper officer. To put it in other words, the scheme is like this. The assessee has to put sufficient amount in deposit in treasury in the account- current with the Collector. From that amount in credit, he can go on adjusting the amounts of duty payable by him on his own assessment. But finally the assessment is to be made by the proper officer and according to that final assessment the assessee has to make debit or credit entries in the accounts maintained by him under Rule 173G. The rules, so far I have examined, do not provide that if the assessee fails to pay the deficiency by making a debit entry in the account-current within ten days of the receipt of copy of the return from the proper officer then the proper officer can himself make that debit entry in the account-current. For failure of the assessee to pay the deficiency by making the debit entry in the account-current, whatever else may follow, but certainly it does not follow that the proper officer himself can make the debit entry in the accounts. In support of the right of the proper officer to make such debit entry reliance is placed upon Section 11 of the Act. And, now I proceed to examine it. 5. In support of the right of the proper officer to make such debit entry reliance is placed upon Section 11 of the Act. And, now I proceed to examine it. 5. Section 11 reads as follows:- In respect 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, the officer empowered by the Central Board of Revenue to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person, and if the amount payable is not so recovered he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Apart from the other modes of recovery, one of the methods of recovery of sums due to the Government provided under Section 11 is that the officer concerned may deduct the amount of deficiency from any amount which may be payable to the person from whom the deficiency is recoverable. If, suppose, a sum of Rs. 50,000 was payable to the assessee by the Department then the officer concerned could deduct the amount of deficiency, say, Rs. 30,000 from that amount and would pay the balance of Rs. 20,000. But then it is difficult to interpret this provision to say that the proper officer can himself make the debit entries in the account-current maintained by the assessee under Rule 173G. The proper officer may inform the assessee that under various accounts-current say, if a sum of Rs. 50,000 is in deposit, he would adjust the amount of Rs. 30,000 payable by the assessee on account of deficiency in the duty paid from the sum of Rs. 50,000 and thence forward would treat the amount of deposit only at Rs. 20,000. The proper officer may inform the assessee that under various accounts-current say, if a sum of Rs. 50,000 is in deposit, he would adjust the amount of Rs. 30,000 payable by the assessee on account of deficiency in the duty paid from the sum of Rs. 50,000 and thence forward would treat the amount of deposit only at Rs. 20,000. If he does so then the assessee in order to carry on his business further, in accordance with Chapter VII A, would be obliged to show in his account books the sum of deposit, as determined by the proper officer. From a practical point of view, the same result can be achieved but by the legal and legitimate method just indicated. Instead of following this legitimate and legal method, respondent No. 1 adopted a course of making the entries himself which are annexures 3 to 6 in this case a method which was not warranted by law. In annexure 1 he had rightly asked the assessee to debit the amount by 22-2-70, namely, the period of ten days counting from the date of the letter. On failure of the assessee he had a right to recover the sum in the mode indicated in the second paragraph of annexure 1 if it is permissible in law, or to adopt any other method including the one indicated by me above. But then I do not feel persuaded to hold on failure of the assessee to debit the amount in accordance with Rule 173-I (2), the proper officer had a right to do so. 7. Learned Counsel for the petitioner, in support of his submission that the proper officer had the authority to make the debit entries in the accounts, placed reliance upon an unreported decision of a learned single Judge of Gujarat High Court in The Union of India v. Shri Prithvi Cotton Mills Ltd. (Second Appeal 531 of 1965 decided on 15-3-71). There also, the debit entries had been made by an officer of Excise Department. The Court of appeal below had held that he was not the proper officer to exercise the power under Section 11 of the Act. The High Court did not agree with this view and reversed the decision. There also, the debit entries had been made by an officer of Excise Department. The Court of appeal below had held that he was not the proper officer to exercise the power under Section 11 of the Act. The High Court did not agree with this view and reversed the decision. No argument seems to have been advanced nor is there any discussion as to whether in exercise of the power under Section 11 an officer could make a debit entry in the account maintained under Rule 173G of the Rules. 8. I find no substance in the second point urged on behalf of the petitioner. The liability to pay the Excise duty is of the manufacturer which in this case is the Company, namely, Rohtas Industries Limited. Its various units were not legal entities. The petitioner may have obtained separate licences for its various factories. But that is not so say that it was not to be treated as an assessee for payment of the excise duty. The liability was its. The trends of the statement in the petitions as also in the affidavit in reply would show that the petitioner was the assessee, was taking all steps for the filing of the appeal of the stay petitions and vis-à-vis the Department it was the only legal person liable to fulfil its demand. 9. In the result, this application is allowed and the debit entries made by respondent No.1 in the four accounts of the petitioners four factories, copies of which are annexures 3, 4, 5 and 6 to the writ application, are quashed. It will, however, be open to the authorities concerned to take action in accordance with law in the light of the judgment, keeping in view the final results of the several appeals filed by the assessee as stated in the beginning of judgment. There will no order as to cost.