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TMI Blog1977 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the same could not be served on the learned Advocate for the petitioner, as he is not generally available in this court. Such submissions of Mr. Banerjee, in my view, have got no substance, since on a reference to the petition of motion, it appears that one Mr. Hemanta Kumar Roy Chowdhury who incidentally is the registered clerk of Mr. P.K. Ghose, Advocate, has identified the petitioner. In that case, it was expected of Mr. Banerjee to have the affidavit served in due time on the said Sri Hemanta Kumar Roy Chowdhury. He has of course stated that Mr. Roy Chowdhury was approached, but he has refused to accept the said affidavit-in-opposition. Be that as it may, since the affidavit was not served on the other side in time, I am not inclin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em as per Rules 9(2), 52A, 210 and 226 of the Central Excise Rules, 1944 and furthermore why the total Central Excise duty including special excise duty as mentioned in the notice in question should not be recovered from them. 5. The said firm admittedly showed cause, wherein amongst others, it contended that the notice as mentioned hereinbefore, was irregular or could not be given effect to or acted upon as since the notice was issued one year after the purported seizure, the said notice was also contended to be incompetent. That same was barred by time under Section 110(2) of the Customs Act, apart, on merits also it was contended that search and seizure or the initiation of the proceeding was improper, irregular, void and illegal. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly, in the instant case, nothing excepting the books of accounts were seized and as such Mr. Banerjee is right in his submissions that they would come under the provisions of Section 110 (3) and not under Section 110(2) and as such, limitation as prescribed would have no application. Mr. Chakraborty, on the question of limitation, also referred to Section 40(2) of the Central Excises and Salt Act, 1944 and submitted that the view of the limitation prescribed therein, the initiation of the proceeding in the instant case was also improper. Such limitation as mentioned in the said section, according to me, will have application in suits and not the present proceedings are concerned, and I am told that this view has been taken in a Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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