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, wi