JUDGMENT : 1. By the present writ petition, petitioner is praying for quashing of orders dated 26.08.1992 passed by Assistant Collector, Excise, Sitapur whereby demand for tax liability was confirmed as well as order dated 08.01.1993 passed by Assistant Collector (Appeals), dismissing petitioner’s appeal against the order dated 26.08.1992 and order dated 05.02.1999 passed by the Customs, Excise and Gold Appellate Tribunal. 2. Brief facts of the case are that the petitioner company is involved in the manufacturing of sugar, which is subjected to levy of Central Excise. In order to incentivise sugar mills to continue manufacturing during the lean season the Central Government by notification dated 28.04.1978 offered rebate on Central Excise levied on all sugar produced between 01.05.1978 to 30.09.1978 in excess of the average production of the corresponding period of the preceding three years. On 14.08.1978, the earlier notification was modified and the rebate was now applicable on excess production between 01.05.1978 to 15.08.1978. Petitioner too submitted his claim for rebate on excess production for the relevant period. The same was allowed vide order dated 04.10.1978 and a rebate of Rs. 16,79,339.65 was credited into the Personal Ledger Account of the petitioner mill. On 08.04.1980 a demand cum show cause notice under Rule 10 of Central Excise Rules, 1944 (hereinafter referred to as Rules of 1944) was served upon the petitioner for recovery of Rs. 1,65,878.34 allegedly claimed and received by petitioner in excess of actual rebate due to the petitioner mill. On the basis of petitioner’s reply, by impugned order dated 26.08.1992 demand of Rs. 1,65,878.34 is confirmed against the petitioner and appellate authorities have also rejected his appeals by impugned orders dated 08.01.1993 and 05.02.1999. 3. Counsel for the petitioner challenges the impugned orders on the ground that the order dated 04.10.1978, approving petitioner’s claim for rebate of Rs. 16,79,339.65 is final and therefore demand notice dated 08.04.1980 for recovery of Rs.1,65,878.34 is time-barred. As per Rule 10 of the Rules of 1944 no demand can be made after a period of six months, while show cause notice for recovery of rebate is issued after almost eighteen months and is therefore clearly time-barred. He further challenges the finding that the order dated 04.10.1978 approving the rebate is passed on the basis of provisional assessment and therefore not hit by the statutory limitation of Rule 10 of the Rules of 1944. He further challenges the finding that the order dated 04.10.1978 approving the rebate is passed on the basis of provisional assessment and therefore not hit by the statutory limitation of Rule 10 of the Rules of 1944. He further submits that the limitation of six months is not applicable only on such final assessment which are obtained by fraud, collusion, wilful misstatement or suppression of facts and since it is not alleged in the show cause notice, said Rule is therefore, not applicable in the present case. In support of his case counsel for the petitioner relies upon judgment of the Supreme Court in the case of Raj Bahadur Narain Singh Sugar Mills Ltd. vs Union of India and Ors.; (1997) 6 SCC 81 . 4. Learned counsel for the respondents, Mr. Deepak Seth opposes the submissions of the counsel for the petitioner and claims that there is no illegality in the impugned order. He submits that order dated 04.10.1978 itself states that it is only a provisional order and therefore is not hit by the limitation prescribed under Rule 10 of the Rules of 1944. Counsel for the respondents submits that facts of the case in Raj Bahadur (supra) are distinguishable from the present case as it is with regard to a final order. This fact is evident from paragraph 2 of the judgment which states that appellant’s rebate claim has been pre-audited as admissible under the notification. This means that the rebate claim was sanctioned after audit of the records and thus it was not a provisional order. Therefore, he submits that, the contention of counsel for the petitioner that the order dated 04.10.1978 was final, does not hold its ground. Bar placed on demands after six months by Rule 10 of Rules of 1944 is applicable only on final orders of assessment. In support of his argument counsel for the respondent places reliance upon a Division Bench judgment of the Bombay High Court in the case of Someshwar Sahakari Sakhar Karkhana Ltd. vs. Union of India and Ors. 1988 (34) E.L.T. 522 (Bom.). The Division Bench of the Bombay High Court was also faced with a similar set of facts where statutory limitation provided under Rule 10 of the Rules of 1944 was invoked by the petitioner against the demand notices. 1988 (34) E.L.T. 522 (Bom.). The Division Bench of the Bombay High Court was also faced with a similar set of facts where statutory limitation provided under Rule 10 of the Rules of 1944 was invoked by the petitioner against the demand notices. Rejecting the contention of the petitioners, the Bombay High Court held that the order approving the rebate was only a provisional assessment and therefore the demand notice is not barred by limitation. 5. I have heard counsel for the parties and perused the record with their assistance. 6. A perusal of the demand notice dated 08.04.1980 shows that there is no reference to fraud, collusion, wilful misstatement or suppression of facts by petitioner as grounds for obtaining the rebate by the petitioner. The only ground taken in the demand notice is that exemption from duty can not exceed the leviable duty itself. Relevant portion of the demand cum show cause notice dated 08.04.1980 reads, “Whereas it appears that M/S Oudh Sugar Mills Ltd., Hargaon Distt. Sitapur (L.4 No. 15/Sug/Bly/54) have contravened the provisions of Rule 10 of Central Excise Rules, 1944 in as much as they have claimed and received excess rebate of Rs. 1,65,878.34 Paise on 23379.83 Qtls. on free sale of sugar during the year 1977-78 un-der Notification No. 108/78 Dated 28.4.78 as per details given below. This is in violation of the principles laid down by the Government of India, Ministry of Finance that an exemption from duty can not exceed the leviable duty itself. In this case M/S Oudh Sugar Mills Ltd., Hargaon have claimed and received Rebate at a level higher than the Excise duty, which is to be refunded/ deposited by M/S Oudh Sugar Mills Ltd., Hargaon under Rule 10 of Central Excise Rules, 1944.” 7. Supreme Court in the case of Raj Bahadur (supra) has held such notices to be in violation of Rule 10 of the Rules of 1944. Relevant paragraphs of judgment in the case of Raj Bahadur (supra) reads: “3. On 30-7-1979 the Superintendent, Central Excise, Hardwar, issued to the appellants a notice. It stated that the appellants “were erroneously sanctioned rebate of Rs 15,59,252.18 … as against Rs 12,90,966.42 on excess production of 62,022.76 quintals of sugar achieved during the period from 1-5- 1978 to 15-8-1978 …”. On 30-7-1979 the Superintendent, Central Excise, Hardwar, issued to the appellants a notice. It stated that the appellants “were erroneously sanctioned rebate of Rs 15,59,252.18 … as against Rs 12,90,966.42 on excess production of 62,022.76 quintals of sugar achieved during the period from 1-5- 1978 to 15-8-1978 …”. The notice set out the details of the rebate granted and the details of clearances and stated that, from these details, “it is obvious that the factory has availed exemption in excess by Rs 2,68,285.76 which was not admissible to them”. The appellants were required to show cause why such excess rebate “granted to them erroneously should not be recovered from them under Rule 10 of the Central Excise Rules, 1944”. 4. The appellants showed cause and contended that the notice was time-barred under Rule 10. The period of six months by which time the notice to demand the amount back should have been issued expired on 17-4-1979. Since the notice had been issued on 30-7-1979, which was beyond the period of six months, the demand was time-barred. The notice did not mention that the refund of duty had been obtained by fraud, collusion, wilful misstatement or suppression of fact, which attracted the limitation period of five years. The entire data having been divulged to the authorities at the time the claim was preferred, there was no justification for the notice after the period of six months. The reply to the notice also dealt with the merits of the claim to the rebate. 5. On 10-2-1983 the Assistant Collector of Central Excise, Saharanpur, confirmed the demand made by the notice. He dealt first with the merits of the claim to rebate and then stated: “Since the amount of rebate was much more than the duty actually paid the party should have informed the department about this fact and also should have themselves paid the excess amount by making a debit entry in the P/L A/C and the .206 free sale sugar which they have cleared as levy sugar and enjoyed the rebate @ Rs 54 instead of Rs 9.60 was incorrect. This fact they should have also informed the department and by concealing all these facts they have made wilful misstatement and suppressed the fact with the intention to evade payment of duty. This fact they should have also informed the department and by concealing all these facts they have made wilful misstatement and suppressed the fact with the intention to evade payment of duty. The show-cause notice issued under Rule 10 was also correct as the same was in force at the time of issue of showcause notice.” ….. ….. 9. We have set out the relevant parts of the show-cause notice. It speaks of an erroneously granted rebate. There is no mention in it of any collusion, wilful misstatement or suppression of fact by the appellants for the purposes of availing of the larger period of five years for the issuance of a notice under Rule 10. The party to whom a show-cause notice under Rule 10 is issued must be made aware that the allegation against him is of collusion or wilful misstatement or suppression of fact. This is a requirement of natural justice. It is also the law, laid down by this Court in CCE v. H.M.M. Ltd. [1995 Supp (3) SCC 322 : (1995) 76 ELT 497 ] It has been said there with reference to Section 11-A of the Central Excises and Salt Act, 1944, which replaced Rule 10, that if the authorities propose to invoke the proviso to Section 11-A(1), the show-cause notice must put the assessee to notice which of the various commissions and omissions stated in the proviso is committed to extend the period from six months to five years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the authorities. The defaults enumerated in the proviso were more than one and if the authorities placed reliance on the proviso, it had to be specifically stated in the show-cause notice which was the allegation against the assessee falling within the four corners of the said proviso. 10. In view of the fact that the notice fails to refer to any of the acts of commission or omission enumerated in the relevant proviso to Rule 10, the notice, given more than six months after the date of the order of refund, is time-barred. Put differently, the Superintendent who issued it had no authority to do so.” 8. 10. In view of the fact that the notice fails to refer to any of the acts of commission or omission enumerated in the relevant proviso to Rule 10, the notice, given more than six months after the date of the order of refund, is time-barred. Put differently, the Superintendent who issued it had no authority to do so.” 8. Thus failure of the excise tax authority to lay out the grounds for extending the limitation period is a sufficient ground for quashing such demand notices and therefore further proceedings on the basis of such faulty notices are without jurisdiction. The judgment of the Division Bench of Bombay High Court in the case of Someshwar Sahakari Sakhar Karkhana Ltd. (Supra) also does not hold good in the light of aforesaid judgment of Supreme Court in the case of Raj Bahadur (Supra). 9. The next submission of learned counsel for respondents is that order dated 04.10.1978 by which rebate was granted was a provisional order and not a final order, therefore, the period of limitation as well as condition of Rule 10 of Rules of 1944 was not required to be fulfilled. He further submits that Rule 10 of Rules of 1944 would apply only in case of final order. For the said purposes he relied upon the language of the said order dated 04.10.1978. 10. Learned counsel for the petitioner disputes the same and submits that the said order dated 04.10.1978 is a final order. The aforesaid order dated 04.10.1978 reads as follows:- “1. In terms of Govt. of India Notification No. 108/78-CE dated 28.4.78 M/s Oudh Sugar Mills Hargaon are provisionally allowed rebate on the quantity as noted on reverse of sugar produced in excess during the months of May 78 to Sept.78 against levy sugar and free sale sugar respectively. The amount should be credited in the Personal Ledger A/c. by the factory as basic excise duty. 2. It should be ensured that the entire quantity produced during the months May to Sept. 78 is cleared from the factory and if there is any loss due to any reason the quantity of rebate may be reduced accordingly. 3. The particulars of adjustment of rebate claim in personal ledger account may please be reported to this office as well as the Supdt. Central Excise MOR II Sitapur and the Chief Accounts Officer Central Excise, Allahabad. 4. 3. The particulars of adjustment of rebate claim in personal ledger account may please be reported to this office as well as the Supdt. Central Excise MOR II Sitapur and the Chief Accounts Officer Central Excise, Allahabad. 4. Before the rebate is credited to the Personal Ledger account the jurisdictional superintendent may please be approached for the purpose.” 11. A perusal of 1st & 2nd paragraphs of the said order dated 04.10.1978, shows that the order is provisional only to the extent it states to clear the entire quantity produced during the months of May to September, 1978 is concerned and in case any lesser quantity is cleared from the factory than the quantity produced during the months of May to September, 1978, the loss due to the same may be reduced accordingly. Therefore, except for the said condition the order with regard to the rebate granted to the petitioner is final. It cannot by any stretch of imagination be a grant of provisional rebate. Hence, the said order is a final order. Thus, this submission of counsel for the respondents also does not have any force. 12. Even otherwise counsel for the tax authority could not produce any final assessment before this Court. Further provisional assessment is provided under Rule 9B of the Rules of 1944. As per the same, instance of provisional assessment arises when (a) the assessee is unable to determine the value of excisable goods and (b) when the asessee is unable to determine the correct classification of the goods. Before approving the provisional assessment, the assessee is also asked to furnish a security bond. In the present case, learned counsel for the authorities could not show any such bond or order approving the provisional assessment. The demand cum show cause notice is issued under Rule 10, but there is no reference to any final assessment carried out by the authorities in support of its demand. In the case of Assistant Collector of Central Excise, Calcutta Division vs. National Tobacco Co. India Ltd.; AIR 1972 SC 2563 , a three judges bench of the Supreme Court has held that fullfilment of conditions provided in the Rule 9B of the Rules of 1944 is required to be followed for an assessment to be called as provisional assessment. Relevant paragraph of the judgment in the case of National Tobacco (supra) reads, “27. India Ltd.; AIR 1972 SC 2563 , a three judges bench of the Supreme Court has held that fullfilment of conditions provided in the Rule 9B of the Rules of 1944 is required to be followed for an assessment to be called as provisional assessment. Relevant paragraph of the judgment in the case of National Tobacco (supra) reads, “27. However, on a consideration of the arguments raised on the merits of that point, we find it is difficult to hold that there was a provisional assessment. CEGAT has adverted to certain reasons for arriving at such a finding. Rule 9-B of the Central Excise Rules has been quoted in the impugned judgment. The title of the rule is “Provisional Assessment”, in which situations are detailed when provisional assessment could be made. CEGAT pointed out in the judgment certain admissions made by the Department such as the absence of any express order of provisional assessment as required under Rule 9-B, absence of any circumstance for making a provisional assessment and that it was not stated in the show cause notice that the assessment made during the relevant period was provisional. The Assistant collector had treated the assessment as provisional solely on the premise that the matter was sub judice and hence “all the assessment for the period April 1981 to 15.3.1983 were, therefore, made provisional”. CEGAT has rightly found that the said yardstick was hardly sufficient to make an assessment provisional.” 13. In light of the aforesaid, demand cum show cause notice dated 08.04.1980 is held to be time-barred and therefore impugned orders dated 26.08.1992, 08.01.1993 and 05.02.1999 passed on the basis of the said time-barred notice are hereby set aside. 14. Writ petition is allowed. 15. The respondents are directed to refund the money deposited by the petitioner in accordance with law.