Judgment 1. THIS is an appeal from the judgment and order of Sabya sachi Mukherji, J. dated November 17, 1971 whereby the connected rule was made absolute. The respondent company has been a manufacturer of glassware. Glass and glassware are assessable to duty advalorem at different rates under the central Excises and Salt Act, 1944. For purpose of clearance of goods, the manufacturers have to submit application in form ARI giving therein the necessary particulars, namely, description of the goods, the assessable value, the rate of duty and the amount of duty etc. Thereafter duty is assessed by the proper Central Excise Officer on the said ARI application and after payment of the duty so assessed the goods are allowed to be cleared. 2. SECTION 4 of the said Act provides that the duty of excise on any excisable goods will be chargeable with reference to its value to be determined at the normal price thereof that is the price at which such goods are ordinarily sold by the asses see to a buyer in the course of whole sale trade. The determination of such value is a lengthy procedure involving scrutiny of assessees vouchers and market affecting day to day clearances of goods. For obviating these difficulties, there has been a practice that the manufacturers submit in advance price list of their products for each quarter of the year showing rates of sales to different parties before the appropriate authority and also may make changes therein. A provisional approval is given by the authority concerned to the said price list declared by the asses see in the ARI application which is subject to final approval after verification of price lists leading to final assessment. Under rule 9b of the Central excise Rules, 1944, made by the Central Government in exercise of powers conferred by sections 6, 12 and 37 of the said Act, the proper officer may direct that the duty may be assessed provisionally if the assess executes a bond in the proper form with surety of sufficient security as may be required binding himself for payment of the difference in the duty as provisionally assessed and as finally assessed. 3. THE respondent submitted price lists from time to time for provisional assessment of goods showing documents to different parties at different rates in respect of different articles and the lists were provisionally approved by the proper officer. 3. THE respondent submitted price lists from time to time for provisional assessment of goods showing documents to different parties at different rates in respect of different articles and the lists were provisionally approved by the proper officer. On July 24, 1961, the respondent executed a bond in Form b 13 (General security) in the sum of Rs.4500/- In that bond, it was recited that as final assessment of excise duty on goods manufactured at its factory could not be made for want of full information, and in view of the request, made by it for provisional assessment pending final assessment, if all dues and would be finally ascertained be not paid, the President would be entitled to enforce his rights under the bond. 4. THE respondents filed its pries lists in vogue from time to time and they were approved provisionally by the excise authorities. Thereafter according to the respondent, the list was verified and excise duty was finally assessed and demands when raised were duly paid. In this way, it is said during the period from September 1, 1961 to September 26, 1963 goods were duly removed from the factory on ART forms and after final assessment duties were duly paid. The authorities according to their case had information sometime in June 1963 that the statements of discount alleged by the respondent to have been allowed to its buyers were false and in fact duplicate set of accounts were kept and maintained to avoid detection. The authorities on September 26, 1963, made a search at the business premises and account books and papers were seized. 5. UPON scrutiny, it was found that the respondent maintained two sets of bills. One set of bills never shown to authorities contained trade discount as 12, 1/2% and the amount was actually collected from whole sales on basis of those bills. The other set of bills containing discount at the rate of 21. 87% or thereabout conforming to the declaration made by the respondent to the authorities, were never issued to buyers nor were ever acted upon. In respect of some bills, supplementary bills were sent and additional amounts in excess of declared prices were collected from buyers. Sometime large quantities of goods were purported to be sold to a non-existent firm but were actually sold to dealers at lesser trade discount than declared. In respect of some bills, supplementary bills were sent and additional amounts in excess of declared prices were collected from buyers. Sometime large quantities of goods were purported to be sold to a non-existent firm but were actually sold to dealers at lesser trade discount than declared. By these processes, total amount of excise duties avoided by the respondent was to the extent about of Rs. 1. 43 lakhs. 6. THE Assistant Collector of Central Excise, Calcutta II Division s. P. Asthana issued a notice on July 20, 1964. calling upon the respondent to explain why differential duty for the said amount should not be recovered from it in respect of the products of glassware moved from its factory during the period from September 1, 1961 to September 26, 1963. The respondent submitted his reply on November 14, 1964 denying the allegations. The successor in office N. D. Khosla in his office note was of the view that as the respondent in the show cause notice was not charge with any breach of the rules and as there is no provision in the Excise Rules and regulations to issue notice for recovery of differential duty in terms of the Bond, the proper course was to issue demand for differential duty straightway. The case was accordingly dropped in its present form on December 29, 1964 and the Superintendent was directed to expedite finalisation of the demand for differential duty. This order was communicated to the respondent on February 15, 1965. On January 7, 1965, a judgment was delivered by B. N. Banerjee, J. in Matter 93 of 1963 in which it was held that there could not be any provisional assessment under Rule 9b where assessment of goods does not involve two or more alternative basis. This view was affirmed in appeal on February 23, 1967 and the case is reported in 72 C. W. N. 137 (Assistant collector of Central Excise and others v. Shree Govinda Glass Works Ltd.)After considering the implications of the said decision, the authorities were advised that while Rule 9b had no Application, the instant case was fully covered by Rule 10a of the Central Excise Rules. Accordingly a fresh show cause notice was issued on November 2, 1967 on the respondent under Rule 10a. Accordingly a fresh show cause notice was issued on November 2, 1967 on the respondent under Rule 10a. The respondent was thereby called upon to show cause why reference to the price lists from April 2, 1961 to September 25, 1963, the prices found on verification should not be approved and differential duties arising there from should not be charged. The respondent by its letter of February 24, 1968 pointed out that the demand was time-barred and otherwise untenable in law. 7. THEREAFTER, the authorities discovered that the show cause notice of November 2, 1967 covered only a part of the total period and also of the total goods involved in the impugned assessment. Accordingly in cancellation of the said show cause notice, a fresh notice was issued on March 26, 1968 stating that the respondent paid Central Excise duty on glasswares during the period from September 1, 1961 to September 26, 1963 not at rates sold by it but at a lower rates declared by it. The respondent was asked to show cause why the excise duty amounting to Rs. 1,437633. 84 P on the difference of assessable value as per statement annexed for sales during the aforesaid period should not recovered under rule 10a of the Central Excise Rules 1944. 8. THE respondent submitted its reply to the show cause on April 29, 1968, contending, inter alia, that the provisional assessments were finalised by the Superintendent after due enquiry and approval of the price lists in each individual case and the demand made after 3 months of the final approval of the price lists was barred by limitation under Rule 10 which being applicable, rule 10a had no application. After a personal hearing the assistant Collector, Central Excise Calcutta II Division, Calcutta, by his order dated August 26, 1968 by an elaborate order of sixty pages held that the respondent had removed glassware from their factory without payment of the Excise duty leviable in full. The duty was assertained on the basis of scrutiny and examination of the records seized at Rs. 1,41,829. 11 P during the aforesaid period after deducting Rs. 1834. 53 from the original demand as the differential duty in respect thereof being already realised. 9. THE respondent being aggrieved by the aforesaid order and the demand notice moved this Court by an application under Article 226 (1) of the constitution. 1,41,829. 11 P during the aforesaid period after deducting Rs. 1834. 53 from the original demand as the differential duty in respect thereof being already realised. 9. THE respondent being aggrieved by the aforesaid order and the demand notice moved this Court by an application under Article 226 (1) of the constitution. It was contended that no demand could be raised as sought to be done under Rule 10 while Rule 10a had no application to the facts of the case. Further no provisional assessment under Rule 9b was contemplated in law and assessments which were in fact finally made could not be reopened in 1968 and the proposed assessments were barred by resjudicata or principles analogous thereto and also by limitation. A rule nisi was issued on the said application on March 10, 1969. 10. THE rule was opposed by the excise authorities and the Union of India who filed an affidavit -in- opposition affirmed by the Assistant Collector of Customs, who passed the impugned order, verified on August 4, 1963. The relevant circumstances and reasons for the various steps taken therein were disclosed. It was further contended that all steps taken were in accordance with law and short levy was due to the untrue declaration made by the respondent resulting in the provisional assessment pending ascertainment of the real value. Such provisional assessments were made at the request of the respondent who promised to pay the differential value if any payable on ascertainment of real value. Rule 10 had thus no application in the instant case which is fully covered by Rule 10a of the Rules. The respondent filed an Affidavit -in- reply affirmed by its Director h. P. Nathani verified on June 17, 1971, reiterating the allegations and contentions made in the petition. It was said that there no scope for provisional assessment. Further the assessments were in fact finalised by several notices of demand and copies of some of such demands were annexed thereto. The case further was covered by Rule 10 and not by Rule 10a which had no application. 11. THE learned Judge on hearing the parties came to the following conclusion:- (1) Merits of the contentions raised by the respondent were not adjudicated when the first proceeding was dropped. The plea of resjudicata was not accordingly tenable in law. The case further was covered by Rule 10 and not by Rule 10a which had no application. 11. THE learned Judge on hearing the parties came to the following conclusion:- (1) Merits of the contentions raised by the respondent were not adjudicated when the first proceeding was dropped. The plea of resjudicata was not accordingly tenable in law. (2) Rule 9b providing for provisional assessment where there are alternative basis of valuation, had no application to the facts and circumstances of the case. (3) Assessment though treated by parties as provisional must continue to be final until it is reopened in accordance with Rules and provisions of the Act, since provisional assessment is not contemplated by the statute. (4) Rule 10 covers all misstatements, innocent or intentional. The provisional assessment at the highest was based on an understanding as it appears from the bond. But there is no scope for such assessment under the rules and in eye of law the said assessment must be deemed final and can only be reopened under rule 10 and not Rule 10a. The short levy was clearly due to misstatement by the respondent within the ambit of Rule 10. (5) Rule 10 being applicable, the order of assessment must be held as barred by time. The rule accordingly was made absolute and a writ in the nature of certiorari was issued quashing the impugned assessment order. This appeal is against this decision by the Union of the India and the Custom Officials. 12. THERE is no dispute that apart from Rule 9b, there is no scope of provisional assessment, as was held in Shri govinda Glass Works Ltd s case referred earlier. There is also no dispute that in the facts of the case the assessment did not involve "two or more alternative basis". It must be, it was held, that the Government was accepting the value put forward on behalf of the asses see taking from it a bond or under taking to pay the deficiency but that did not make the assessment a provisional assessment under Rule 9b. Strong reliance was placed by Mr. It must be, it was held, that the Government was accepting the value put forward on behalf of the asses see taking from it a bond or under taking to pay the deficiency but that did not make the assessment a provisional assessment under Rule 9b. Strong reliance was placed by Mr. Bajoria, learned counsel for the respondent, on the above decision in support of his contention that the assessment made by the Excise authority on basis of price lists supplied by the said respondent could not be provisional assessment in law but it was a final assessment under the relevant Act and its rules. Mr. D. K. Sen, learned counsel for the appellants, contended, on the other hand that the assessment or payment of duty on the basis of the price list supplied by the respondent was only an incomplete assessment. The impugned notice of March 26, 1968 was one for final assessment on the basis of goods at prices actually found on scrutiny. The assessment was under rule 10a and there was no illegality about the notice and the final and completed assessment was made on hearing the respondent's lawyer. It may be mentioned here that if the decision in shri Govinda Glass Works Ltd s case referred to earlier ruled the filed there could be no other assessment except once, whether it is provisional or final, under the rules and as such the assessment once made must necessarily be the final assessment. Mr. Sen however drew our attention to the decision of the Supreme Court in Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., a. I. R. 1972 S. C. 2563 where the court set aside the decision of this Court, directing the Collector to proceed to complete the assessment in a similar case in this case the cigarette company maintained an ''account current'' and manufactured goods were removed by it by ostensible settlement of accounts by making therein debit entries on basis of its price list; the Court observed :- "we are, therefore, unable to accept the view that merely because the "account current". kept under the third proviso to Rule 9 indicated that an accounting had taken place, there was necessarily a legal or valid or complete levy. The making of debit entries was only a mode of collection of tax. kept under the third proviso to Rule 9 indicated that an accounting had taken place, there was necessarily a legal or valid or complete levy. The making of debit entries was only a mode of collection of tax. Even if payment or actual collection of tax could be spoken of a defacto "levy" it was only provisional and not final. It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it. Moreover, it is the process of assessment that really determines whether levy is short or complete. It is not a factual or presumed levy which could in a disputed case, prove an "assessment". This has to be done by proof of the actual steps taken which constitute assessment". 13. THE court found that a mechanical adjustment and ostensible settlement by debit entries were gone through, but such adjustment could not be equated with "an assessment, a quasi judicial process which involves due application of mind to the facts as well as to the requirements of law" The court further held an "assessment" in eye of law could only be reopened by rule 10 and if what took place was not an "assessment" the case fell beyond rule 10 as it stood at the relevant time. 14. THE facts here are similar to those in the above case. Here also there was no "assessment" as is understood in eye of law but only a mechanical settlement or adjustment of duties on the basin of the sale prices filed by the respondent. At best it was an incomplete assessment which on the above authority, the proper Excise officer was entitled to complete under rule 10a. The impugned notice accordingly is not amenable to challenge on the ground that such assessment was and should be deemed final. At one stage of hearing it seemed to us that Rule 10 may not include within its ambit fraudulent statement as opposed to mi-statement by the owner. Mr. Bajoria contended that misstatement included fraudulent, statement and if cases of collusion between the officer and owner could be included in Rule 10, there is no reason to exclude fraudulent statement from the ambit of the said Rule. This was so held in N. B. Sanjana v. The Elphin-stone Spinning and Weaving Co. Ltd. (Appeal No. 69 of 1963 dated July 1/2. This was so held in N. B. Sanjana v. The Elphin-stone Spinning and Weaving Co. Ltd. (Appeal No. 69 of 1963 dated July 1/2. 1965) by a Division Bench of the Bombay High Court which later on went up to the Supreme Court reported in a. I. R. 1971 S. C. 2039, but these aspects of the decision were not disturbed. In the view we have taken it is not necessary to probe the point further. 15. MR. Bajoria next submitted that the assessments were finalise as pleaded in the petition of motion and the approval of the price list by the department on verification became final and in fact differential duty was realised. These contentions about finalization have been denied in the affidavit- in- opposition filed on behalf of the appellant. Assuming the prices were approved by "the price verification officer" and some demands were raised and realised, such demands were on the basis of the price list submitted by the respondent or may be on verification but there is no evidence on pleading that there was thereafter a completed "assessment" as contemplated in law by the proper officer as the competent authority in respect thereof. Further these are disputed questions of facts not considered by the learned trial judge and we do not feel inclined to enter into the question for the first time in appeal particularly in a proceeding arising oat of Article 226 (1) of the Constitution. 16. THE Supreme Court in the national Tobacco Company's case held that the proposed action in completion of the assessment following provisional adjustment or settlement was under rule 10a and not Rule 10. Rule 10 is confined to a case where the demand is made for short levy caused wholly by one of the reasons given in the rule so that an assessment has to be reopened. It was held that there was no assessment in eye of law which could be reopened under Rule 10 in that case. The case was thus beyond Rule 10 as it stood then. Following the above authority we hold that Rule 10 which provides for three months' limitation from the date of payment or adjustment of account current has no application. The residuary rule 10a in the circumstances become applicable to the case and this rule in terms does not provide for any limitation for completion of the assessment. 17. Following the above authority we hold that Rule 10 which provides for three months' limitation from the date of payment or adjustment of account current has no application. The residuary rule 10a in the circumstances become applicable to the case and this rule in terms does not provide for any limitation for completion of the assessment. 17. EVEN so, Mr. Bajoria contends, that under section 40 (2) of the Act, no proceedings can be initiated after six months from the accrual of the cause of action. This provision, it is contended, applies to all legal proceedings which obviously includes departmental proceedings as in the instant case. Such departmental proceeding initiated by the impugned notice of March 26, 1968, after five years of the alleged cause of or from the date of the act or order is hopelessly barred by limitation. Reliance was placed on an unreported decision of the single Judge of the madras High Court in A. Longanathan v. Secretary to the Government of India and others dated November 15, 1972 (W. P. No. 600 of 1971) in which bamaprasad Rao, J. held that the departmental proceeding being taken long after six months from the alleged evasion of duty brought to the knowledge of the authority, was barred under section 40 (2) and was accordingly quashed. It was further contended that it would be inconceivable to confine legal proceedings to proceeding in Court, as such interpretation would imply that while proceedings in court even criminal proceedings would be barred after six months from the impugned act or cause of action, the department would be free from any bar of limitation to proceed any time it elected to do so. 18. MR. Sen contended that nowhere in the application the respondent had alleged any definite date for purpose of commencement of the limitation. Mr. Sen referred to the definition of 'proceeding' in Article 7 volume 1 of Halsburys Laws of England (Third Edition) which means a step in an action 'action' in its turn in Article 1 is defined as a proceeding in court of justice. Reliance was also placed in the decision in S. V. Kondeskar, official Liquidator v. V. M. Despande income Tax Officer A. I. R. 1972 S. C. 878 which interpreted the words 'other legal proceeding" and 'legal proceeding' in sub section (1) and (2) respectively of section 446 of the Companies Act. Reliance was also placed in the decision in S. V. Kondeskar, official Liquidator v. V. M. Despande income Tax Officer A. I. R. 1972 S. C. 878 which interpreted the words 'other legal proceeding" and 'legal proceeding' in sub section (1) and (2) respectively of section 446 of the Companies Act. It was held that 'legal proceeding' and 'other legal proceeding' which have the same meaning do not include Income tax assessment proceeding and the liquidation court cannot perform the function of the Income-tax Officer. Further institution of proceeding contemplates institution in a Court of law and such action is different from initiating a proceeding which the proper excise Officer may on his own set into motion before him. Section 40 as follows: - Section 40. Bar of suits and limitation of suits and other legal proceeding "(1. . . . . . . . . . . . . . . . . . (2) No suit, prosecution or legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of". The decision A. Logannthans case came up for consideration before the Division Bench in Writ Appeal no. 134 of 1974 and by judgment of July 16, 1975 the said decision under appeal was set aside. The Court proceeded on the assumption that "proceeding other than a suit" in sub-section (2) of section 40 may possibly over assessment proceedings on the basis of the decision in Governor- General -in council v. Shromani Sugar Mills Ltd. in liquidation, A.I.R. 1946 F.C. 16 and S.V. Kandaskar Official Liquidator v. V.M. Despande I.T.O. A.I.R. 1972 S.C. 878 which were decisions on section 171 of the Indian Companies Act 1913 and section 446 of the Companies Act 1956. It was held that an assessment proceeding, started with show cause notice is not within the purview of section 40 (2) though for prosecution for. violation of any statutory provision or rule made thereunder in the taxing statute the sub-section will be attracted as was held in Public Prosecutor Madras v. R. Raju (A.I.R. 1972 S.C. 2504. An assessment, it was held, is not based on violation by the asses see of any provisions of law but is founded on the charging provision. violation of any statutory provision or rule made thereunder in the taxing statute the sub-section will be attracted as was held in Public Prosecutor Madras v. R. Raju (A.I.R. 1972 S.C. 2504. An assessment, it was held, is not based on violation by the asses see of any provisions of law but is founded on the charging provision. The starting point of limitation will be from the date of the cause of action or of an act or order made under the act, which is either the proceedings started by show cause notice or the assessment order and before that there is no room for applying section 40 (2. 19. THE Supreme Court in Khondaskar's case held that income tax payable is a debt ranking paripassu with other debts due from a Company and proceeding for realisation of such debt from a company in liquidation is within the definition of other legal proceedings as defined in section 446 of the companies Act which cannot be commenced or continued without leave of the liquidation court. The Court however rejected the contention that assessment or re-assessment proceedings under the Income tax Act, are such other legal proceedings which can only be started or continued with leave of liquidation Court. It was held that the income-tax Act was a complete code for assessment proceedings and it cannot be said that the winding up Court will perform such functions. 20. THIS decision has reference to the particular statute and may have no significance to the case we are concerned with. We are however unable to accept that the words "other legal proceeding'' in the section 40 (2) include, assessment proceeding under the act, as assumed in the Madras case. For proper interpretation of the said sub-section (2) of section 40 it will be necessary to lock into the section more closely which, we propose to do presently. We are however unable to accept that the words "other legal proceeding'' in the section 40 (2) include, assessment proceeding under the act, as assumed in the Madras case. For proper interpretation of the said sub-section (2) of section 40 it will be necessary to lock into the section more closely which, we propose to do presently. We are however in agreement with the appellate decision in A. Longanathan's case holding that assessment is not based on any violation by the asses see of any provision of law but is founded on the charging provision, while a prosecution based on such violation is such "legal proceeding" as contemplated therein and as held in raju's case, as the asses see did not pay the lawful dues which are acts to be done or ordered to be done under the Act, with the result that section 40 (2) becomes applicable. The limitation under 40 (2) will accordingly start, when there is no violation of the provisions of the Act, from any act or order under the Act namely an order of assessment under the charging provision. In considering the provisions of section 40 sub-section (2) we find here that generic words follow more specific words of same nature. As has been laid down in Maxwell on Interpretation of Statutes p. 326-7 (11th Edition) "but the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. In other words, it is to be read as comprehending only things of the same kind or those designated by them, unless, of course, there be something to show that a wider sense was intended, as, for instance, a proviso specifically excepting certain classes clearly not within a suggested genus. . . . . . . . . . . . Unless there is a genus or category there is no room for application of the ejusdem generis doctrine. . . . . . " the Supreme Court in Amar Chandra v. Excise Collector, Tripura A. I. R. 1972 S. C. 1863 observed (para 9) "the ejusdem generis rule strives to reconcile the incompatibility between specific and general words. . . Unless there is a genus or category there is no room for application of the ejusdem generis doctrine. . . . . . " the Supreme Court in Amar Chandra v. Excise Collector, Tripura A. I. R. 1972 S. C. 1863 observed (para 9) "the ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the Statute contains an enumeration of specific words; (ii) the subject of the enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration ; (iv) the general term follows the enumeration ; and (v) there is no indication of a different legislative intent. 21. IT appears to us that the principle of ejusdem generis applies to the provisions we are concerned with. The words 'legal proceeding' though they otherwise include within their ambit departmental proceeding, in view of the words proceeding they must be circumscribed to proceedings like 'suit' and 'prosecution'. Suit as also prosecution mean and imply proceedings instituted in a court of law and they do not in our opinion, include departmental proceeding which can be initiated by the proper officer before him. In this view section 40 (2) has no application to the departmental proceeding and impugned proceedings can not be held to be barred by limitation under the provisions of the said sub-section. It may be mentioned here that sub-section (2) of section 40 has since been substituted to include: only claims against Government and its officers. 22. MR. Bajoria next contended that the proceedings impugned should be held as barred by the principles of resjudicata or principles analogous to it in view of the earlier proceedings taken against the respondent for the same cause of action but abandoned and dropped as not maintainable. For application of the principle of resjudicata there must be an adjudication or final decision of the matters in controversy between the parties. There has been admittedly no such adjudication, but the earlier notice dated July 18, 1964, in its present form was dropped as it was thought that the respondent was not charged for any breach of rules. That is not an adjudication as contemplated to create an effective bate of resjudicata. Mr. Bajoria lastly contended that Rule 10a which purport to contain residuary powers for recovery of sums due to Government was ultra vires the act. That is not an adjudication as contemplated to create an effective bate of resjudicata. Mr. Bajoria lastly contended that Rule 10a which purport to contain residuary powers for recovery of sums due to Government was ultra vires the act. He referred to the Bench decision in Messrs Agarwal Bros. v. Union of India, 1973 Taxation Law Reports 2213 in which decision of another single judge of the said High Court holding rule 10a ultra vires as accepted. The judgment of the single Judge is reported in Citadel Fire Pharmaceuticals P. Ltd. v. District Revenue Officer, chingleput and Others 1973 (1) M. L. J. 99. It was held that where the enactment, the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 is silent on the question of levy of escaped assessment, the rule 12 framed under the said Act cannot extend the charging power conferred by section 3. 23. IT may be mentioned here that we are concerned in this case not with a case of escaped assessment, but a case where the assessment was sought to be completed in accordance with law following earlier settlements or adjustments which at the highest could be called incomplete assessments according to the decision in National Tobacco's case cited above. The point about vires of Rule 10a was not taken in the petition and it was only taken at the hearing before us. On objection being taken we have not allowed Mr. Bajoria to urge the point of vires before us though we have considered the decisions cited by him. It may further be mentioned that in the National tobacco Company's case the Supreme court considered Rule 10a and the following observations were made in respect thereof when disposing of the appeal: "although Rule 52 makes an assessment obligatory before goods are removed by the manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any time in the circumstances of the case like the one before us where no "assessment" as it is understood in law took place at all. On the other hand Rule 10a indicates that there are residual powers of making a demand in special circumstances not for seen by the farmers of the Act or the rules. On the other hand Rule 10a indicates that there are residual powers of making a demand in special circumstances not for seen by the farmers of the Act or the rules. If the assesses disputes the correctness of the demand an assessment become necessary to protect the interests of the assesses. A case like the one before us falls more properly within the residuary class of unforeseen cases. We think that, from the provisions of section 4 of the Act read with Rule 10a an implied power to carry out or complete the assessment not specifically provided for by the rules, can be inferred. No writs of Prohibition or Mandamus were, therefore, called for in the circumstances of the case." The appeal was accordingly allowed and it was directed that "the collector may now proceed to complete the assessment". The question raised need not be considered further as there is no further scope for such consideration in view of the above decision. 24. IN the premises, the appeal succeeds and is allowed. The judgment and order under appeal are seaside and the Rule is discharged. There will be no order for costs in the circumstances. All interim orders, if any, are vacated. Mr. D. K. Dhar prayed for stay of the operation of the judgment and order. The operation of the judgment and order is stayed for a period of four weeks. Appeal allowed.