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TMI Blog1991 (5) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Act, 1985 (Act No. 79 of 1985) by which the show cause notice is to be issued by the Collector if and when proviso to Section 11A for extended period of 5 years is invoked. 3. The facts of this case are that the show cause notice dated 26-12-1985 was despatched on 27-12-1985 to the appellants demanding duty of Rs. 1,27,67,112.85 P. on the goods, namely, Kraft paper falling under Tariff Item 17, illicitly manufactured and removed by them during the period 1-4-1983 to 31-7-1985 under the proviso to sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944 read with Rule 9(2) of Central Excise Rules, 1944 alleging fraud, wilful mis-statement and suppression of facts and also wrongly availing of exemption under Notification No. 142/81 dated 8-7-1981. This show cause notice has been issued under the handand signatures of Superintendent, Law Branch-I, Central Excise and Customs, Hdqrs., Baroda. The proceedings were conducted before the learned Collector of Central Excise, Baroda, who after considering the entire materials and records and giving sufficient opportunity to the appellants, passed order-in-original dated 4-1-1988 confirming the said demand raised in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hot be complete unless it has reached the hands of the person to whom it has been given. The said observation of the Hon ble Supreme Court appearing in paras 10 and 11 of the judgment is reproduced below - This brings us to the main contention that three days notice of the special general meeting was not given and so the meeting is invalid. We find it difficult to agree with the High Court that sending the notice amounts to giving the notice. Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however, giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore, giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person chargeable with the duty which has not been levied or paid to show cause why he should not pay the same. The notice must be issued within six months from the relevant date, the expression, relevant date, having been defined in clause (ii) of sub-section (3) of that section. We then come to the proviso which refers to cases of fraud, collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with intent to evade payment of duty etc. Under this proviso where any duty of excise has not been levied or paid by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or the Rules made thereunder with intent to evade the payment of duty, the provisions of the sub-section will 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 are substituted. Since the period in respect of which the duty is demanded exceeds six months, there can be no doubt that the Department proposes to invoke the proviso to sub-section (1) of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the notice in the present case ceased to be a valid notice in these circumstances. 11. It is not the appellants case that the notice was not served on them. Nor is it their case that it was not served within the extended period of limitation. Therefore, the judgments and decisions which relate to the giving or serving of a notice are not, in my respectful view, of direct help in resolving the present issue. 12. However, sub-section (1) of Section 11A of the Central Excises and Salt Act requires that in cases where the extended period of limitation beyond six months is sought to be invoked, the Collector of Central Excise may, within 5 years from the relevant date, serve notice on the person chargeable with the duty not levied or paid or short-levied or short-paid. It may thus be seen that one of the important requirements is that the competent officer who is the Collector in cases involving the extended period of limitation, shall serve notice. The notice served by any other Central Excise officer would not constitute a proper or valid service of notice. Not only must the notice by physically served on the noticee within the period of limitation but it is the competent off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) E.L.T. 111. In that case also, the show cause notice issued under Section 131(3) of the Customs Act by the Central Government was dated 8-10-1982. The notice was posted by registered post on the same date but it was received by the noticee on 12-10-1982. The contention for the noticee before the Tribunal was that having regard to the date of receipt of the notice by the respondent it could not be said that any proceeding was pending before the Central Government on the appointed date, namely, 11-10-1982 and the question of transfer of any pending proceedings would, therefore, not arise. It was held that since the giving of the notice was only on 12-10-1982, there was no valid initiation of the proceedings by the Central Government before the appointed date and, therefore, no action could be taken against the notice in terms of the said notice. In the instant case also, the situation is closely analogous. For the same reasons as in the Jayant Oil Mills case it cannot be said that there was any valid proceedings initiated in terms of the show cause notice which was pending as on 27-12-1985, the appointed date for this case, which could have been transferred to the Collector in te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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