JUDGMENT L. N. RAY (Judicial Member). - This application under article 226 of the Constitution of India was filed in the Original Side of the High Court at Calcutta, being Matter No. 6012 of 1988. Upon transfer to this Tribunal under section 15 of the West Bengal Taxation Tribunal Act, 1987, it was numbered here as RN-166 (T) of 1989. The applicant challenges the legality and validity of assessment of tax, penalty and interest thereon under the Bengal Finance (Sales Tax) Act, 1941 and the Central Sales Tax Act, 1956, for the years ending June 30, 1980, 1982 and 1983 (the two Acts will be referred to hereinafter as "the 1941 Act and 1956 Act", respectively). He also challenges the proceedings for recovery of the assessed demands. 2. Briefly stated, the applicant's case is that he carries on a business of selling minerals under the name and style of M/s. Sri Behari Enterprises and is a registered dealer under both the said Acts. The Commercial Tax Officer arbitrarily rejected the applicant's prayer for adjournment of hearing of assessment cases and made ex parte best judgment assessments for the said periods. Appeals were preferred by the applicant against such assessment orders for the year ending June 30, 1980. Adjournment was prayed on the ground of applicant's illness, but the Assistant Commissioner of Commercial Taxes rejected the petition and passed ex parte orders in the appeals on December 6, 1985. On or about October 25, 1988, the applicant received six certificates of public demand seeking recovery of various sums as arrears of tax, penalty and interest under Certificate Case Nos. 103 to 105, 107, 108 and 110-ST(MK)/88-89. The assessments are challenged as bad, inter alia, on such grounds as violation of rules of natural justice for not giving reasonable opportunity of being heard, absence of materials for arriving at ex parte best judgment assessments and making such assessments by ignoring the materials on record. Demand of interest is challenged on the ground that the provisions relating thereto were introduced with effect from October 1, 1983, and, therefore, could not be applied to assessments for earlier periods. 3. The respondents filed two affidavits-in-opposition. In the first affidavit on behalf of the Certificate Officer, it is stated that on receipt of requisitions and upon such satisfaction as the Bengal Public Demands Recovery Act, 1913, required, certificate notices were duly served on the applicant. 3. The respondents filed two affidavits-in-opposition. In the first affidavit on behalf of the Certificate Officer, it is stated that on receipt of requisitions and upon such satisfaction as the Bengal Public Demands Recovery Act, 1913, required, certificate notices were duly served on the applicant. In the second affidavit the case of the respondents is that all the actions taken and all the orders passed were in accordance with law. The ex parte assessments for the year ending June 30, 1980, were made after a number of adjournments were given. The assessments for the years ending June 30, 1982 and 1983 were made in the presence of the applicant himself. At the time of assessment for the year ending June 30, 1983, apart from the applicant, his Advocate was also present. The Assistant Commissioner could not but dispose of the appeals ex parte, as the applicant failed to avail of any of the opportunities given to him for representing his case. From the conduct of the applicant it is allegedly clear that he wants to evade payment of due tax. Ex parte and best judgment assessment necessarily involve guess-work to a reasonable extent, but it cannot be said that such assessment in the case of the applicant were without any basis. Although the applicant had right of appeal against the assessment orders for 1982 and 1983, he failed to exercise that right. Even though he filed appeals against assessment orders for the year ending June 30, 1980, he chose to remain absent at the hearing. He did not avail of another opportunity of moving the Tribunal below, namely, West Bengal Commercial Taxes Tribunal, against orders passed in the appeals. There is allegedly no illegality in any of the orders passed or actions taken. 4. In the affidavit-in-reply the applicant has made a new point that although interest has been charged for all the three disputed years, no notice of demand was served therefor. Though this deficiency was brought to the notice of the respondent No. 4, the Certificate Office, no action was taken by him. Accordingly, the certificate proceedings relating to realisation of interest are said to be invalid. 5. Mr. Though this deficiency was brought to the notice of the respondent No. 4, the Certificate Office, no action was taken by him. Accordingly, the certificate proceedings relating to realisation of interest are said to be invalid. 5. Mr. S. N. Bose, learned Advocate for the applicant, prefaced his arguments with the submission that the applicant primarily prays for mercy, because it was no possible for him either to file appeals against orders of assessment or to pursue the appeals which he could file and also it was not possible for him to approach the Tribunal below against orders passed in the appeals due to financial stringency. In other words, Mr. Bose contended that his client failed to avail of the statutory remedies under the 1941 Act and 1956 Act because he could not arrange funds for payment of admitted amounts of tax, etc., which was a prerequisite. Mr. Bose fairly conceded that it is now settled that although the provisions relating to interest were introduced with effect from October 1, 1983, those would apply to cases where assessment orders were made on or after October 1, 1983, even for periods earlier than that. 6. As regards the demand of interest for all the three years, Mr. Bose appearing for the applicant submitted that the certificate proceedings in respect thereof are void due to non-compliance of rule 49E(2) of the Bengal Sales Tax Rules, 1941. He submitted further that service of notice in form VII-L under that rule was mandatory. The learned State Representative did not deny that notice in form VII-L under rule 49E(2) was not served for any of the assessments in question relating to interest or that service of such notice was necessary. He, however, submitted that assessment of interest, if found due, was unavoidable. The learned State Representative did not deny that notice in form VII-L under rule 49E(2) was not served for any of the assessments in question relating to interest or that service of such notice was necessary. He, however, submitted that assessment of interest, if found due, was unavoidable. Rule 49E(2) is reproduced below for better appreciation : "If the amount of interest determined under rules 49A, 49B or 49C, or after rectification under rule 49D, is more than the amount, if any, already paid by the dealer, the assessing authority shall serve a notice in form VII-L upon him demanding payment of the amount of interest due and specifying the date, not less than thirty days after the service of the notice, on which payment shall be made, and he shall also fix a date on which the dealer shall produce the receipted challan in proof of such payment." It will appear from the above provision that if the amount of interest determined is more than the amount of interest, if any, already paid, then a notice in form VII-L was mandatory obviously before any proceedings for recovery could be initiated. The words "if any" indicate that such notice is required to be given in a case where either no amount has been paid towards interest or in a case where the amount already paid as interest is less than the amount of interest determined. That being so, the certificate proceedings for all the three years for recovery of interest cannot be sustained. 7. Mr. S. N. Bose contended on behalf of the applicant that the ex parte best judgment assessment with regard to inter-State sales under the 1956 Act cannot be sustained in the absence of any evidence showing that the goods had been despatched out of the State of West Bengal. We do not propose to go into that question, as we will presently see that this case can be effectively decided otherwise. 8. It is undisputed that appeals were filed against assessments under the 1941 Act and the 1956 Act for the year ending June 30, 1980. The argument on behalf of the applicant was that the appeals could not be pursued because fund could not be arranged for paying admitted amount of tax, etc., which was mandatory under the proviso to section 20(1) of the 1941 Act. The argument on behalf of the applicant was that the appeals could not be pursued because fund could not be arranged for paying admitted amount of tax, etc., which was mandatory under the proviso to section 20(1) of the 1941 Act. He further submitted that the assessment under the Central Act of 1956 was also erroneous as the assessed turnover was Rs. 35,000 while the admitted turnover was a little more than Rs. 50,000. Mr. Bose further argued that the applicant may be given an opportunity to file appeals against assessments for the years 1982 and 1983 on payment of admitted tax, etc., in accordance with law. Learned State Representative was fair in conceding that the applicant may be given an opportunity to file appeals, if any, against the assessments for those two years on payment of admitted tax, etc., but we may not make any observation about the question of limitation which may be left to the appellate authority to decide. 9. Certificate notices were issued in these cases for aggregate amounts of tax, penalty and interest. In other words, separate certificate notices were not served for payment of tax, penalty and interest, respectively. That being the case and on account of absence of service of notice under rule 49E(2) of the Rules under the 1941 Act, the certificate proceedings for all the three years for assessment under the 1941 Act and 1956 Act should be set aside. We are of the further opinion that the applicant should be given an opportunity, in the circumstances of the present case, to file appeals on payment of admitted tax, etc., against assessments for the years ending June 30, 1982 and 1983 with a direction to the appellate authority to dispose of the same in accordance with law. As regards the appeals, which had been filed against assessment orders for the year ending June 30, 1980, we feel that the applicant should get an opportunity to get those appeals restored on payment of admitted tax, penalty and interest. Accordingly, the present application is allowed without costs on the following terms : The applicant may, if he is so advised, file appeals before the appropriate appellate authority against orders of assessment under 1941 Act and 1956 Act for the years ending June 30, 1982 and 1983 on payment of admitted tax, penalty and interest within eight weeks from this date. The applicant will also be at liberty to make payment of admitted tax, penalty and interest and pray within eight weeks from now to the appropriate appellate authority for restoration of the appeals, which he had filed against orders of assessment under both the Acts for the year ending June 30, 1980. If such appeals are filed and such prayer for restoration is made and the admitted tax, penalty and interest are paid within the aforesaid period, the appropriate appellate authority shall dispose of those appeals and prayers in accordance with law within eight weeks from the date of payment in each case. The certificate cases bearing Nos. 103-ST(MK)/88-89 to 105, 107, 108 and 110-ST(ML)/88-89 pending before the Certificate Officer, 24-Parganas, 14, Beliaghata Road, Calcutta, are hereby set aside. We make it clear that we are not making any observation about the question of limitation or any other question [except the question of service of notice under rule 49E(2)] which may be raised or involved in the aforesaid appeals. If appeals for the years 1982 and 1983 are not filed and if restoration of appeals for the year 1980 is not prayed for in terms of this order, fresh certificate proceedings may be initiated in accordance with law. P. C. BANERJI (Technical Member). - I agree. Application allowed.