Provisional assessment and Section 11A: recovery notice cannot be issued before finalisation of assessment.

Section 11A of the Central Excise Act could not be invoked to issue show-cause notices while provisional assessment was still pending finalisation. The settled position applied was that recovery under Section 11A arises only after assessment has been finalised; before that stage, the Department must use permissible enquiries or other lawful steps rather than the proviso to Section 11A. On that basis, notices issued during pendency of provisional assessment were held invalid and quashed in favour of the assessee.

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Issues: Whether Section 11A of the Central Excise Act could be invoked and show-cause notices issued before finalisation of provisional assessment.

Analysis: The assessment was still pending finalisation when the notices were issued. The settled position applied was that Section 11A is not available at the stage of finalisation of provisional assessment and can be resorted to only after the assessment has been finalised. Even if the assessee had not furnished the required information, the Department was required to proceed in accordance with the law by permissible enquiries or other steps, but not by invoking the proviso to Section 11A before final assessment.

Conclusion: Section 11A could not validly be invoked before finalisation of assessment, and the show-cause notices issued under that provision were quashed in favour of the assessee.

Ratio Decidendi: Section 11A cannot be invoked for recovery during the pendency of provisional assessment and becomes applicable only after finalisation of the assessment.

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