A.P. Misra, J. - (1.) In view of the exchange of affidavits between the parties and as agreed to the present writ petition is being disposed of finally at the stage of admission.
(2.) The petitioner seeks quashing of show cause notice dated 4th January, 1993 (Annexure 2 to the writ petition), issued by the Collector, Central Excise, Allahabad whereby an additional excise duty amounting to Rs. 40,04,757.63R has been demanded from the petitioner for the period December 1987 to November 1992. The challenge is that proviso to Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) is not applicable on the facts and circumstances of this case. Therefore, the demand for a period of five years is unsustainable.
(3.) The only question raised before us to which we are adverting in this petition is whether proviso to Section 11A is applicable or not. The relevant portion of Section 11A is quoted hereunder :" 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 paid or has been short levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where 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, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words 'Central Excise Officer', the words 'Collector of Central Excise', and for the words 'six months', the words 'five years' were substituted." Before proviso is made applicable it has to be seen whether there was any fraud, collusion, wilful mis-statement or suppression of fact by the petitioner for the department to issue the impugned notice claiming duty for a period beyond period of six months. Under sub-section (1) of Section 11A there is no such requirement, but the show cause notice for the recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded has to confine for a period of six months from the relevant date. However, if a case is covered under the proviso the period for which show cause notice is valid is five years from the relevant date instead of six months. Normally, the question whether there is any fraud, collusion, wilful mis-statement or suppression of facts are all in the realm of question of fact and it is not proper in a proceeding under Article 226 of the Constitution to go into them and to record findings for the purpose of testing the validity of the notice under it. It is only when on admitted facts and on the facts stated in the show cause notice even if accepted if it is not possible to draw any conclusion of fraud, collusion, wilful mis-statement or suppression of facts only then this Court would interfere with further proceedings in pursuance to the said notice. It is necessary to state certain facts for the disposal of issue involved in this case.;