Judgment All the above Appeals were taken up together for final hearing as learned Counsel appearing for the respective parties pointed out that the points of fact and law involved in the above appeals are identical and, according to the learned Counsel, all the above matters were always taken up together for hearing. 2. Upon hearing the learned Counsel and on perusal of the substantial questions of law which arises in the present Appeals and by consent of the learned Counsel, the following two substantial questions of law are framed for the purpose of consideration: 1) Whether in the event under the Employees State Insurance Act of 1948, the dominant activity i.e. the construction activity is not covered, the activity incidental to the dominant activity i.e. of administration and sales would be covered under the Act? 2) Whether an Order under Section 45-A could be passed on the basis of the assumed wages in the circumstances in which the records are produced? 3. Shri G. Sardessai, learned Counsel appearing for the Appellants, has assailed the impugned Orders passed by the learned ESI Court, essentially on the ground that as the construction activity is not covered under the E.S.I. Act, the question of incidental activity carried out at the office premises of sale cannot be covered under the said Act. Learned Counsel further pointed out that although the learned Single Judge of this Court in the Judgment reported in 2004(5) BCR 537 in the case of GauriMohan Pohoomul vs. Regional Director, Employees State Insurance Corporation & anr., has taken a view that such incidental activity and/or persons who are working at the Head Office of the construction Company are also covered under the E.S.I. Act, he points out that the said Judgment requires re-consideration. Learned Counsel has taken me through the provisions of the Act and pointed out that the Judgment of the learned Single Judge has not considered the well settled principles of law with regard to the applicability of the ESI Act and, as such, the said Judgment is to be referred to a larger Bench. Learned Counsel has taken me through the provisions of the Act and pointed out that the Judgment of the learned Single Judge has not considered the well settled principles of law with regard to the applicability of the ESI Act and, as such, the said Judgment is to be referred to a larger Bench. With regard to the next substantial question of law for consideration, Shri Sardessai, learned Counsel, has pointed out that the E.S.I. Court was not justified to accept the Order passed by the Authorities under Section 45-A of the said Act on the basis of best Judgment as, according to him, material was adduced to establish the actual wages which were paid to the employees. Learned Counsel further pointed out that for the period preceding for the period involved in the present appeals, the Appellant had produced sufficient material to establish the actual wages paid to the employees. Learned Counsel as such submits that as such evidence was produced before the authorities they were not justified to base the assessment on the basis of best Judgment under the provision of Section 45-A of the said Act. Learned Counsel has taken me through the impugned Judgment and pointed out that the Court has not considered that such material was produced before the authorities. Learned Counsel further pointed out that he has now come across a Circular dated 31.12.2008 which inter alia, gives a right to the corporation to re-open the cases where the contribution has been determined under Section 45-A of the Act in specific situations. Learned Counsel further pointed out that the case of the Appellants comes within the scope of the said Circular and, as such, the Appellants are entitled to invoke or take benefit of the said circular which, according to him, would substantially reduce the liability to deposit such contribution. Learned Counsel as such submits that the impugned Order passed by the ESI Court deserves to be quashed and set aside. 4. On the other hand, Mrs. Agni, learned Counsel appearing for the Respondents, has supported the impugned Judgment. Learned Counsel further pointed out that the learned Single Judge of this Court after considering the earlier Judgments as well as the law as then in force, has rightly come to the conclusion that the employees who are carrying out incidental activities in a construction Company are also covered. Learned Counsel further pointed out that the learned Single Judge of this Court after considering the earlier Judgments as well as the law as then in force, has rightly come to the conclusion that the employees who are carrying out incidental activities in a construction Company are also covered. Learned Counsel has taken me through the Judgment of the learned Single Judge of this Court and pointed out that there is no ground for re-considering the said Judgment. Learned Counsel further pointed out that the provisions of the ESI Act are beneficial in nature and, as such, the question of any interpretation which would defeat the very object of the Act would not be justified. Learned Counsel further relied upon the Judgment of the Apex Court reported in (1997) 1 SCC 625 in the case of Employees' State Insurance Corporation vs. F. Fibre Bangalore (P) Ltd. 5. With regard to the next contention of the learned Counsel appearing for the Appellants, Mrs. Agni, learned Counsel appearing for the Respondents, has pointed out that admittedly the Appellants have not produced any evidence before the authorities whilst passing the best Judgment under Section 45-A of the Act and as such the question of now contending that such material was available with the authorities, is not justified. Learned Counsel further pointed out that the Court has rightly come to the conclusion that the authorities were entitled to pass the best Judgment. In support of her contention, learned Counsel has relied upon the Judgment of the Apex Court reported in 2007(1) S.C.C. 584 in the case of ESI Corpn. vs. C. C. Santhakumar, and pointed out that considering the ratio laid therein, the authorities were justified to pass an Order under Section 45-A of the Act. Learned Counsel as such submits that the above contention deserves to be rejected. 6. With regard to the contention of Shri Sardessai, learned Counsel appearing for the Appellants, to the effect that the Appellants are entitled for the benefit of the said Circular, Mrs. Agni, learned Counsel appearing for the Respondents, fairly states, upon instructions of the Respondents, that even if the above Appeals are dismissed, the Appellants are free to move an application before the concerned authorities in the light of the said circular and the authorities will consider such application in the light of the said circular in accordance with law. Agni, learned Counsel appearing for the Respondents, fairly states, upon instructions of the Respondents, that even if the above Appeals are dismissed, the Appellants are free to move an application before the concerned authorities in the light of the said circular and the authorities will consider such application in the light of the said circular in accordance with law. Learned Counsel fairly states that even if the above Appeals are dismissed or disposed of, it shall not preclude the Appellants from moving the Respondents in view of the said Circular. Learned Counsel as such submits that all the above Appeals deserve to be rejected. 7. I have considered submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. With regard to the first contention of Shri Sardessai, learned Counsel appearing for the Appellants, I find that whilst disposing of the Appeal under ESI Nos. 1 and 2 of 2003 (M/s Kurtarkar Real Estate V/s Regional Director, Panaji ) this Court had come to the conclusion that the Judgment of the learned Single Judge in the case of Gauri Mohan Pohoomul V/s Regional Director ESIC, Mumbai, reported in 2004(3) CLR 879 does not require any reconsideration. The learned Single Judge after considering the well settled principles of law and the object of the said Act, has come to the conclusion that even if the dominant activity is of construction the employees working in the alleged incidental activity in the administration office, are covered under the Act. As such, the findings of the learned E.S.I. Court on that count cannot be faulted. For the reasons stated in the Judgment dated 13.08.2012 passed in Appeal Under ESI Nos. 1 and 2 of 2003, the first substantial question of law is answered against the Appellants. 8. With regard to the second contention raised by the learned Counsel appearing for the Appellants, I find that the records reveal that admittedly, no documents were produced before the E.S.I. authorities by the Appellants. Once such fact is accepted, the authorities were justified to proceed under Section 45-A of the Act to pass the best Judgment in accordance thereof. The contention of Shri Sardessai, learned Counsel appearing for the Appellants, that such documents were produced before the Court, would not assist him to claim that the act of the authorities to proceed under Section 45A of the Act, is vitiated. The contention of Shri Sardessai, learned Counsel appearing for the Appellants, that such documents were produced before the Court, would not assist him to claim that the act of the authorities to proceed under Section 45A of the Act, is vitiated. The ratio of the Judgment of the Apex Court in the case of ESI Corpn. vs. C. C. Santhakumar (supra), relied upon by Mrs. Agni, learned Counsel appearing for the Respondents, is consequently applicable to the facts of the present case which reads at para 15 thus: "15. Section 45-A provides for determination of contributions in certain cases. When the records are not produced by the establishment before the Corporation and when there is no co-operation, the Corporation has got the power to make assessment and determine the amount under Section 45-A and recover the said amount as arrears of land revenue under Section 45-B of the Act. This is in the nature of a best-judgment assessment as is known in taxing statutes. When the Corporation passes an order under Section 45-A, the said order is final as far as the Corporation is concerned. Under Section 45-A(1), the Corporation, by an order, can determine the amount of contributions payable in respect of the employees where the employer prevents the Corporation from exercising its functions or discharging its duties under Section 45, on the basis of the material available to it, after giving reasonable opportunity. But, where the records are produced, the assessment has to be made under Section 75(2)(a) of the Act. Section 45-A(2) provides that the order under Section 45-A(1) shall be used as sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as arrears of land revenue under Section 45-B. In other words, when there is a failure in production of records and when there is no cooperation, the Corporation can determine the amount and recover the same as arrears of land revenue under Section 45-B. But, on the other hand, if the records are produced and if there is cooperation, the assessment has to be made and it can be used as a sufficient proof of the claim of the Corporation under Section 75 before the ESI Court. So, the limitation of three years for filing an application before the court, introduced by Act 44 of 1966, can only relate to the application under Section 75 read with Section 77 (1-A). The order under Section 45-A need not be executed by the Corporation before the ESI Court under Section 77. As such, the amendment to Section 77(1-A)(b) proviso by Act 29 of 1989 providing five-year limitation has no relevance so far as orders passed by the Corporation under Section 45-A are concerned.” Considering the said aspect, I find that the learned E.S.I. Court was justified to pass the impugned Order as admittedly no records were produced before the authorities. 9. With regard to the contention of Shri Sardessai, learned Counsel appearing for the Appellants, to the effect that the Appellants are entitled to invoke the Circular dated 31.12.2008, taking note of the contention of Mrs. Agni, I find that liberty be given to the Appellants to move the concerned authorities to invoke the said Circular. In case any such application is filed, the authorities shall decide such application after hearing the concerned parties in accordance with law. The dismissal of the above Appeals shall not come in the way of the Appellants to file such applications and the authorities shall deal with any such applications after considering the said Circular in accordance with law. 10. Subject to the liberty referred to herein above, I find that no case is made out to interfere in the above Appeals. Hence, the Appeals stands dismissed with no orders as to costs.