Bharucha J.
1. This is an appeal by the Union of India against the interim order passed on 19th July 1988 in the respondents' writ petition. The learned single judge, upon a prima facie interpretation of Section 11A(3)(ii)(b) of the Central Excises and Salt Act, entertained doubts as to whether the Collector could have issued the show cause notice that is impugned in the petition. Accordingly, he restrained further proceedings therefrom.
2. Mr. Sethna, learned counsel for the appellants, drew our attention to the Division Bench judgment of the Delhi High Court in Duncans Agro Industries Ltd. v. Union of India and Others, 1989 (39) E.L.T. 511 (Delhi). The judgment interpreted the relevant provision in a manner that consists Mr. Sethna. The Division Bench proceeded upon the basis that the provision laid down a rule of limitation. A rule of limitation, it said assumed the existence of a cause of action and did not define or create it.
3. With great respect to the Delhi High Court, we are of the view that an examination of the provision by this court is required. It will be seen that sub-section (1) of Section 11A, which invests the officer with the power to issue a show cause notice, invests him with the power to do so within a stated time 'from the relevant date'. That the relevant date has come and gone is, therefore, a sine qua non of the valid exercise of the power conferred by sub-section 1. The definition of 'relevant date' appropriate to the present case is contained in sub-section (3)(ii)(b) of Section 11A. Where, as here, excise duty has been provisionally assessed, it is the date of adjustment of duty after final assessment. Prima facie, there is, therefore, substance in the respondents' contention that the relevant date has not come and that, consequently the officer did not have the power to issue the show cause notice. This was the basis upon which the learned single judge stayed further proceedings upon the show cause notice and we are inclined to agree with him.
4. It was submitted by Mr. Sethna that the material upon which the show cause notice was based was other than that in regard to which the provisional assessments had been made. Upon the material that is shown to us it is not possible to so hold at this stage. The argument will require consideration at the stage of the final hearing of the petition.
5. Mr. Sethna submitted that this was not a case where all the assessments were provisional and that some assessments had been finalised. There is no affidavit filed by the respondents. There is, therefore, no material upon which we can presently decide this.
6. Mr. Sethna submitted that the appellants should be allowed to proceed with the hearing on the show cause notice and appropriate safeguards may be given. Having regard to our doubts about the validity of the show cause notice, we do not think that course of action can be allowed.
7. In this view of the matter on merits, we do not find it necessary to consider the submission made by Mr. Hidayatullah, learned counsel for the respondents that the appeal is filed beyond time.
8. The appeal is dismissed.
9. We order as to the costs.