TaxTMI 
TaxTMI 
2013 (6) TMI 120
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....hya, Senior Advocate, assisted by Sri Ritvik Upadhya for M/s Eco Products India Pvt. Ltd. (hereinafter referred to as the assessee). There is delay of 99 days in filing the Central Excise Appeal Defective No.402 of 2005 for condonation of which Civil Misc. (Delay Condonation) Application No.249294 of 2005 has been filed by the appellant, which is supported by affidavit of D.S. Chaubey. In the affidavit filed in support of the application for condonation of delay, it has been stated that on 24th May, 2005 the papers with the instruction for filing appeal has been received in the office of the Assistant Solicitor General of India. The summer vacation started thereafter, hence appeal could be prepared on 29th July, 2005 and two copies of the drafted appeal were sent to the appellant for effecting service on the respondent. On 9th August, 2005 the appeal was received after verification of the Notary but there was certain defect pertaining to signature and the same was again sent to rectify the mistakes. Thereafter the appeal could be received back on 4th September, 2005 and after verification it was revealed that in the affidavit although certain additions were made but the same ....
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....Customs, Excise and Gold (Control) Appellate Tribunal being Appeal No.E/434/99-B by the assessee which appeal was allowed by the judgment and order dated 26th June, 2000. The Commissioner, Central Excise, Meerut submitted an application to the High Court under Section 35H(1) of the Central Excise Act, 1944 requiring the High Court to direct the appellate Tribunal to refer to the High Court following two questions of law:- "1. Whether ''ACQUARIUS II' brand water purifier, manufactured by M/s Eco Products (India) Pvt. Ltd. out of moulds supplied by M/s Singer India Ltd. and when the owner ship of such moulds always remain with M/s Singer India Ltd. and water purifier manufactured were solely marketed by M/s Singer India Ltd., were branded goods or not? 2. Whether water purifier manufactured by M/s Eco Products (India) Pvt. Ltd. in the brand name of ''AQUARIUS II' which was owned by M/s Singer India Ltd., was not a branded goods in terms of clause 4 of the Notification 1/93-CE dated 28.02.93 and if it was so, whether exemption/concession to said goods was available under the said Notification?" The said application was registered as Central Excise Reference Application Defect....
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....after orders were passed by the Additional Commissioner, Central Excise on 15th November, 1999 confirming the demand of Rs.1,39,060/- on the water filters removed without payment of duty. The order of confiscating 1216 water filers was also passed giving option to redeem the same on payment of redemption fine of Rs.6,08,000/-. The penalty of Rs.1,39,060/- was also imposed under Rule 173-Q read with Section 11-AC of the Act. By another order dated 13th December, 1999, the Additional Commissioner confirmed the demand of Rs.3,03,109/- and penalty of of equal amount. The assessee filed appeal against both the orders dated 15th November, 1999 and 13th December, 1999 which were disposed of by the Commissioner (Appeals) by order dated 4th August, 2003 and 12th August, 2003 respectively. Against the orders dated 4th August, 2003 and 12th August, 2003 appeals were filed before the Customs, Excise & Service Tax Appellate Tribunal by the assessee which appeals were dismissed by judgment and order dated 27th January, 2005. Appeals against the orders dated 4th August, 2003 and 12th August, 2003 were also filed by the revenue which were dismissed by the same order dated 27th January, 2005. The C....
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....the High Court, which are expressly mentioned in Section 35-G(1) in following words "not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment". Sri Upadhya submits that the question that the assessee is entitled for exemption under the notification dated 28th February, 1993 is a question relating to the rate of duty, hence the appeal under Section 35-G of the Act is excluded by statutory provision and the appeal cannot be entertained. He submits that proceeding for recovery of duty under Section 11-A of the Act in essence is a proceeding for assessment/re-assessment of duty and is clearly covered by exclusionary clause as contained in Section 35-G(1) of the Act. It is further submitted that provisions of Section 11-A of the Act are re-assessment provisions. The eligibility of the goods for exemption is in issue which question is directly and proximately related to the rate of duty for the purposes of assessment on excise duty payable by the assessee, hence the appeal could be filed only under Section 35-L of the Act. Sri S. P. Kesarwani, learned co....
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....cation of Confiscations and Penalties", Section 35 of which contemplated appeal against an order of Central Excise Officer to the Central Board of Excise and Customs as constituted under the Central Boards of Revenue Act, 1963 or to any Central Excise Officer empowered in that behalf by the Central Government. Section 35-A of the said Act provided for revision to the Board or Collector. Section 36 provided for revision to the Central Government. A new Chapter-VIA was added by Finance (No.2) Act (44 of 1980) containing the heading "Appeals". Chapter-VIA replaced Sections 35, 35-A and 36 of the Act. Initially Section 35G provided for statement of case to the High Court whereas Section 35-H provided for statement of case to the Supreme Court and Section 35-L provided for appeal to the Supreme Court. Sections 35-G, 35-H and 35-L as inserted by Finance (No.2) Act (44 of 1980) were as under:- "35G. Appeal to High Court. ‑ (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of d....
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....e who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.] 35H. Application to High Court. ‑ (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed 2[before the 1st day of July, 2003[ (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. (2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify th....
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....excise or to the value of goods for purposes of assessment. Section 35-G was further amended by Finance Act (32 of 2003) with effect from 14th May, 2003. Section 35-G as amended by Finance Act (32 of 2003) was as under:- "35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating ....
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....peal shall lie to the Supreme Court from -- (a) any judgment of the High Court delivered - (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment." From the above, it is clear that when the application filed by the Commissioner of Central Excise on which Central Excise Reference Application Defective No.11 of 2001 was registered under Section 35-G of the Act which provided statement of case to the High Court, was existing. Section 35-H of the Act which was earlier substituted by Act 27 of 1999 provided for application to the High Court by the ....
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....llant. The appeal is disposed of. There shall be no order as to costs." As noted above, at the relevant time when the reference application was made, the reference provisions also contained the same exclusionary clause. Thus the same questions regarding maintainability of appeal under Section 35-G and maintainability of reference to the High Court are to be considered and fate of both will be same. We have heard learned counsel for the parties on the question of maintainability of appeal. Thus we proceed to consider the submissions of learned counsel for the parties regarding maintainability of central excise appeal under Section 35-G of the Act. The appeal to the High Court under Section 35-G shall lie from every order passed on the appeal by the appellate Tribunal on or after 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment). The issue to be considered is as to whether the order of the appellate Tribunal against which central excise appeal has been filed is an order relating to the determination of any ques....
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....oods which are produced or manufactured, - (i) Omitted. (ii) by a hundred per cent export-oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975)." The words "rate of duty" under the Act was initially contained in the first schedule of the Central, Excises and Salt Act, 1944. After enforcement of the Central Excise Tariff Act, 1985, the words "first schedule to the Central Excise Tariff Act, 1985" has been inserted in Section 3 of the Act. The exemption from duty can be granted by the Central Government from time to time by notification in the official gazette as was provided in Rule 8 of the Centr....
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....ases Permanent Edition (Vol. 36). Some of the definitions of the word ''rate' as mentioned in Words And Phrases Permanent Edition (Vol. 36) are as follows:- "A prescribed "rate" may consist of a variety of elements such as regulations accompanying the tariff, and all elements which produce rate must be taken into account. Great Northern Ry. Co. v. Armour & Co., D.C.III., 26 F.Supp. 964, 967. "Rate" is a flexible term, of which many definitions are to be found; and what it means in a particular instance must depend upon the context and subject-matter. It may mean amount; degree; percentage; price; proportion; proportion or standard; ratio; sum; value. Also, the term may be employed as meaning a fixed measure of estimation; the measure of a thing by its ratio or relation to some fixed standard; a rule or measure of assessment; proportional estimation according to some standard. E.C. Miller Cedar Lumber Co. v. U. S., 86 F.2d 429, 435, 24 C.C.P.A., Customs, 272. Word "rate" may mean measure, valuation, proportion, or percentage, but in constitutional provision relating to taxation, it is used in sense of both valuation and percentage. State ex rel. Mason County Logging Co. v. ....
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.... of Rs.24,52,000/- be not confiscated under Rule 173Q. Sri Kesarwani has lastly contended proceedings under Section 11A being proceedings for recovery of duty, no question of assessment is involved therein, hence the orders passed under Section 11A of the Act for recovery of duty are not covered by exclusionary clause as contained in Section 35-G. He submits that orders passed under Section 11A of the Act cannot be termed as assessment order, hence appeal can very well be filed in this Court under Section 35-G challenging the order passed under Section 11A and the present appeal is fully maintainable. As noted above, learned counsel for the parties have placed reliance on various judgments to support their submissions. Learned counsel for the assessee has placed much reliance on the judgment of the Apex Court in the case of Naveen Chemicals Mfg. and Trading Co. Ltd. Vs. Collector of Customs reported in (1993)4 SCC 320. The Apex Court in the said case was considering the expression "the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment" as contained in Section 130 of the Customs Act, 1962. The issue ....
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....be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes/of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A....
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....ers. Similarly, Section 35-E of the Central Excise Act provides for powers of Board or Commissioner of Central Excise to pass certain orders. Both the provisions contain similar power under the Customs Act, 1962 as well as the Central Excise Act, 1944 respectively. Sub-section (5) contains an exception to the aforesaid provision which provided that this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation to the said section contains inclusive definition of the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty whereas Explanation (d) clearly indicates that whether any goods are covered by a particular notification or order of the Central Government granting total or partial exemption is included in the definition, all questions having relation to the rate of duty. Although Section 35-E sub-section (5), as inserted by the Customs and Central Excise Laws Amendment Act, 1988 has not been enforced but the ....
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.... claiming, will have to be examined. Thus, in his submission, the issue also relates to the question of exemption. 19. Having heard rival parties on the preliminary objection referred hereinabove,it is not in dispute that the appellant was E.O.U. The impugned order has been passed demanding duty and imposing penalty on them on the ground that the goods were cleared to the Domestic Tarrif Area (D.T.A.) contrary to the provisions of the Act. The issues raised and catalogued by the appellants themselves in their written submission are reproduced hereinbelow to consider the strength of the preliminary objection raised by the Revenue: 1. Whether the appellant can be asked to pay excise duty at a higher rate as applicable for the alleged DTA clearances from an EOU under the proviso to Section 3 of the Excise Act? 2. Whether or not demand of both customs duty and additional excise duty beyond the 16% already paid is inconsistent and incorrect and whether it should have been set aside by the Tribunal? 3. Whether the debonding of E.O.U. unit has to relate back to the date of import or the application for debonding i.e. to 6.10.2001? 4. Whether or not the proviso to Section 3 ....
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....peal. A similar controversy whether an assessee is covered by an exemption notification relating to rate of duty or not came up for consideration before a Division Bench of this Court in the matter of Commissioner of Central Excise, Ludhiana v. A.S.T. Paper Mills Ltd., 2008 (227) E.L.T. 189 (P&H). The Division Bench after discussing the matter in detail, especially in the light of judgment of Hon'ble the Supreme Court rendered in the case of Navin Chemicals Manufacturing and Trading Company Limited v. Collector of Customs, 1993 (68) E.L.T. 3, has held that since the question of law raised in that appeal was relating to determination of a question having relation to the rate of duty of excise, therefore, for determination of such question the appeal does not lie to this Court and the same has to be filed before Hon'ble the Supreme Court under Section 35L of the Act. Hon'ble the Supreme Court in the case of Navin Chemicals (supra) has categorically held that the expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' used in the other part should be interpreted similarly. A dispute as to whether or not t....
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....on of the apex court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs (supra), the classification dispute having a direct nexus to the determination of the rate of duty, the present appeal which relates to a classification dispute would not be maintainable under section 35G of the Act to the High Court." Before the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore vs. Mangalore Refineries & Petrochemicals Ltd. reported in 2011(270) E.L.T. 49 the expression "question relating to the rate of duty and to the value of goods for the purposes of assessment" came for consideration. In the said case the assessee filed classification declaration for claiming exemption from payment of duty under Notification No.67/95 C.X., dated 16.3.1995. A show cause notice was issued demanding duty on the proportionate quantity of LSHS used in the generation of electricity, which in turn was not used in or in relation to the manufacture of final products. Adjudication order was passed confirming demand of duty and the penalty. The demand was confirmed in appeal. The Tribunal allowed the appeal of assessee against which revenue filed appeal in th....
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....or the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act." A perusal of the explanation makes it clear that determination of the rate of duty means whether any goods are excisable goods and whether the rate of duty of excise on any goods is nil, whether the said goods are or are not covered under a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty and whether the value of any goods for the purpose of assessment of duty of excise shall be enhanced or reduced by addition or reduction of the amounts in respect of such matters as are specifically provided under the Act. Though the determination of the word duty may not include all those questions, the explanation makes it clear the aforesaid expanded meaning is to be attributed to the aforesaid phrase for the purpose of this section only. It is because the said explanation is added to Section 35Ewhich deals with the power of revision of Board or Commissioner of Central Excise in certain case. In other words w....
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....y law for a uniform and equal rate of taxation and assessment, applies to the percentage of fixation, as used in connection with 'taxation' and to the valuation of the property, as used in connection with assessment'. It is a valuation of every man's estate or setting down how every one shall pay, or be charged with, to any tax. By the use of the expression 'rate' a relation between the taxable income and the tax charged is intended, but the relation need not be of the nature of proportion of fraction. The Explanation to Sub-section (5) of Section 35E of the Central Excise Act, the expression includes the determination of a question relating to the rate of duty, to the value of goods for the purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for the purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification o....
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....a circular which has a bearing on the determination of the rate of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. In the circumstances, the present appeal which relates to the applicability of the above referred circular, relates directly to the determination of rate of duty for the purpose of assessment and as such, in the light of the provisions of section 35G read with section 35L of the Act, this Court has no jurisdiction to entertain the appeal." A Division Bench of Karnataka High Court in the case of Commissioner of Customs, Bangalore vs. Motorola India Ltd. reported in 2012(275) E.L.T. 53 again to the same effect laid down following in paragraph 40, which is quoted below:- "40. Therefore, the expression 'rate' is often used in the sense of a standard or measure. Rate' generally is an impost, usually for current or recurrent expenditure, spread over a district or other local area and is distinct from an amount payable for work done upon or in respect of particular premises. 'Rate' is defined by Webster to be the price or amount stated or fixed for anything. The word 'rate' includ....
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.... of the Act. Therefore, the phrase 'rate of tax' does not mean fraction of tax payable because what is the tax payable i.e., fraction payable is decided by the legislature. Once that is prescribed by the legislature in the Act, the Court cannot sit in judgment and alter or modify the said rate of tax. The Court has no jurisdiction to go into the correctness or otherwise of the rate of tax payable in the sense the rate prescribed by the legislature. Therefore, the argument that the rate of tax means only the rate at which tax is payable or a fraction is unsustainable. The above cases do support the submission raised by learned counsel for the assessee. Now the submission of Sri S.P. Kesarwani that in orders passed under Section 11-A of the Act no question relating to assessment can be said to be involved since proceeding under Section 11-A is a proceeding for recovery is to be considered. Section 11-A has been inserted in the Act by Act No.25 of 1978 with effect from 1st August, 1978. Section 11-A(i) is as follows:- "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.--(1) When any duty of excise has not been levied or pa....
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....), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officer, shall determine the amount of duty or interest not being in excess of the amount partly due from such person.] (2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer,-- (a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and (b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or shor....
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.... the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." Prior to insertion of Section 11-A, the same provision was contained in Rule-10 of the Central Excise Rules, 1944. Sub-section (1) of Section 11-A provides that when any duty of excise has not been levied or paid or has been short levied or short paid, a show cause notice is to be issued to him as to why he should not pay the amount as specified in the notice. The judgment of the Apex Court while considering Rule 10, also considered the words "levy" and "assessment" in the case of Assistant Collector of Central Excise, Calcutta vs. National Tobacco Company of India Ltd. reported in A.I.R. 1972 SC 2563. The Apex Court in the said case held that term "levy" is wider than the term "assessment" and the term "levy" may include imposition of tax as well as assessment. It was further held that it is process of assessment that really determines whether the levy is short or complete. Following was laid down in paragraphs 19, 20 and 21 of the said judgment:- 19. ..... The Division Bench appears to h....
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....e any dispute that re-assessment is also an assessment. There may be a situation when under any earlier assessment duty was short levied then Section 11-A empowers to issue a show cause notice within the time frame as provided and to determine the short levy. Thus the submission of Sri Kesarwani that Section 11-A is only a recovery proceeding which does not involve any question of assessment cannot be accepted. The proceedings under Section 11-A are proceedings for determination of a liability after show cause notice by which a duty not levied or short levied is determined. A Division Bench of this Court in the case of Shahnaz Ayurvedics vs. Commissioner of Central Excise, NOIDA reported in 2004 (173) E.L.T. 337, has also referred to proceedings under Section 11-A as proceeding for reopening of an assessment. Sri S.P. Kesarwani referring to paragraph 20 and 22 of the judgment of the Apex Court in Assistant Collector of Central Excise, Calcutta's case (supra) has submitted that the Apex Court has laid down that the term "levy" may include assessment yet it does not extent to collection. There cannot be any dispute to the proposition as laid down by the Apex Court in the aforesaid....
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....e of the goods for purpose of assessment, the appeal was held not maintainable before the Apex Court. The said judgment does not help the appellant in the present case. Sri Kesarwani has also placed reliance on I.T.C. Ltd. vs. Collector of Central Excise, Patna reported in 1997(94) E.L.T. 456 (SC) where the appeal was filed under Section 35-L of the Act against the order of the appellate Tribunal. Following was laid down in paragraph 3 of the said judgment:- "3. A perusal of the said clause shows that an appeal lies to this Court against an order passed by the Tribunal relating to the determination of any question relating to the rate of duty of excise or to the value of goods for the purposes of assessment. Shri Ravinder Narain has submitted that the impugned order passed by the Tribunal relates to the value of goods. The said question relating to value of goods has, however, arisen on the claims for refund of excise duty submitted by the appellant before the Assistant Collector. In our opinion, the question of valuation of goods in the context of a claim for refund cannot be regarded as a question having relation to the value of goods for the purposes of assessment. The ass....
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....ourt and the Apex Court have been clearly demarcated. The right of appeal has been granted to the assessee or revenue before the High Court and the Apex Court on different grounds. There is no question of giving any restrictive interpretation to the exclusionary clause under Section 35-G since the category which was excluded from the appeal before the High Court under Section 35-G of the Act is expressly included under Section 35-L of the Act. The demarcation of the subject matter of appeal before this Court and the Apex Court was with some object and purpose and when the words in sections are plain and unambiguous, the plain and literal interpretation has to be adopted. It is useful to refer to paragraph 44 of the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore vs. Mangalore Refineries & Petrochemicals Ltd. (supra) where the Karnataka High Court has noticed the intention behind the bifurcation of jurisdiction between the Apex Court and the High Court. Following was laid down by the Karnataka High Court in paragraph 44, which is as under:- "44. The intention behind this bifurcation of jurisdiction between the Apex Court and the High ....