2017 (9) TMI 353 - HC - Central Excise

Validity of SCN - Time limitation - Section 11A(4) of the Central Excise Act, 1944 - Held that - the impugned show cause-cum-demand notice is dated March 31, 2016 and it relates to the period from April 2011 to May 2015. It is within the time span of five years stipulated under Section 11A(4) of the Act of 1944. The present writ petition appears to be an attempt by the petitioner to stall the adjudication proceedings on specious pleas. The instant writ petition is casuistic. It would be appropriate to dismiss the writ petition and put the writ petitioner on terms - petition dismissed.

Summary

Issues:
Challenge to show cause-cum-demand notice on grounds of limitation under Section 11A(4) of the Central Excise Act, 1944.

Analysis:
The petitioner challenges a show cause-cum-demand notice dated August 8, 2016, invoking the extended period of limitation. The petitioner argues that if a claim is barred by limitation, the notice is without jurisdiction, citing relevant case law. The Department contends that limitation is a mixed question of fact and law. Section 11A(4) of the Act allows a five-year period for issuing such notices. The impugned notice dated March 31, 2016, covers the period from 2011 to 2015, falling within the statutory limit. The notice accuses the petitioner of suppressing facts to evade duty. The petitioner's reply has not been disposed of, raising concerns about delay.

The Court examines the applicability of Section 11A(4) in the case. It notes that the notice is within the prescribed time frame and alleges suppression of material facts by the petitioner. The petitioner argues that the notice is ex facie bad due to limitation, but the Court finds that the claim is within the statutory period. The Court distinguishes cases where limitation is a mixed question of fact and law, stating that a writ petition is not maintainable in such instances. The Court emphasizes that the allegation of suppression is a factual issue to be decided by the adjudicating authority.

The Court dismisses the writ petition, deeming it an attempt to delay adjudication. The petitioner is directed to pay costs to the West Bengal State Legal Aid Services and commence adjudication proceedings promptly. Failure to pay costs will result in the adjudicating authority proceeding with the case and recovering costs from the petitioner. The Court emphasizes expeditious resolution of the matter and directs no adjournments to be granted without valid reasons.

In conclusion, the Court upholds the validity of the show cause notice within the statutory limitation period. The petitioner is directed to pay costs and proceed with the adjudication process without delay.