A show cause notice issued under Section 11a of the Central Excises and Salt Act, 1944, beyond the limitation period of six months must state on its face how the proviso to the section is being invoked to justify the issuance of the notice.

AJOY NATH RAY, J.

( 1 ) THIS is a writ application challenging a show cause notice dated 28th March, 1990, whereby a claim for unpaid Central Excise Duty is made by the respondent authorities for the period of 1-4-1985 to 31-7-1985.

( 2 ) THE respondent authorities have not yet been asked to file any Affidavit-in-Opposition but I am of the opinion that no such affidavit is necessary as the said show cause notice is bad in law as apparent on the face of it.

( 3 ) AN earlier show cause notice was issued for recovery of Central Excise Duty and for penalty upon the same writ petitioner for the years 1979-80 to 1984-85, all the years ending with the 31st of March. The earlier show cause notice is dated 25th April, 1986.

( 4 ) IT is clear from the said earlier show cause notice that Central Excise Duty was being sought to be recovered, upon the twin allegation, that the number of workers at the factory of the writ petitioner, was, according to the respondent, more than what was declared by the writ petitioner, and that the annual turnover of the writ petitioner for the aforesaid years was in excess of Rs. 30,00,000/- excepting for only the year 1980-81. These were all revealed, as the earlier show cause notice itself states, pursuant to the first visit of the authorities to the writ petitioner's premises on 21st February, 1985 and subsequent proceeding had thereafter.

( 5 ) THE instant show cause has come nearly five years late. In case the month of July 1990 had elapsed without the service of the show cause notice the period of 1-4-1985 to 31-7-1985 would have been outside the period of limitation as envisaged under Section 11a of the Central Excises and Salt Act, 1944. The said Section and its relevant proviso are set out hereunder :-"section 11 A. 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 mis-statement 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. "

( 6 ) ON the basis of the said Section and the said proviso it is quite clear that in case a show cause notice is served beyond the period of six months the said show cause notice must state on the face of it as to how the notice is being sent beyond six months but within five years by reason of the case coming within the ambit of the proviso to that Section. Without such an expression of how the respondents seek to invoke their power of recovery beyond the period of six months the party intended to be affected would not know how to answer that point and in that event would be deprived of its legal right of taking and establishing the point of limitation.

( 7 ) IN the instant case there is no statement which in my opinion sufficiently invokes the proviso to Section 11a. The portion of the show cause notice as challenged which is relevant in the above regard is stated below :-"m/s. S. D. B. Chemical Manufacturing Co. (P) Ltd. , took out a Central Excise Licence in form L. 4 No. 6/nes-68/adhesive/r-2/i/85 dated 24-9-1985 as per Government of India Notification No. 178

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