Judgment:
B.P. Jeevan Reddy, C.J.
1. This writ petition is directed against the show cause notice dated 21st May 1983, issued by the Superintendent, Central Excise, Range II, Varanasi to the petitioner. Under this notice the petitioner is called upon to show cause as to why he should not be required to pay an amount of Rs. 20,88,111.02 towards the duty short paid. The period for which this duty is demanded is December 1978 to 31st March 1983. The reasons for which the show-cause notice is given, are mentioned in annexure-A to the show cause notice.
Annexure-A recites:
During the period from Dec. 1978 to March 1983 they knowingly and deliberately suppressed the material facts for the correct classification of their end product 'Electrical Resistance wires' under tariff item No. 33(b)(ii) and continued to pay duty on their product wrongly under tariff item No. 26-AA at the much lower rate than the rates actually they required to pay duty under tariff item No. 33(B)(ii); consequently they have made short payment of duty to the tune of Rs. 20,88,111.02 as per details given in annexure 'B' (enclosed) which they are required to pay.
The above duty is recoverable from them under Section 11A of Central Excises & Salt Act, 1944.
2. Though this writ petition prays for quashing the said notice, it is evident that the writ petition is in the nature of a writ of prohibition. Such a writ petition lies only where total want of jurisdiction is made out. We are unable to see any such ground in this writ petition. The main ground is that the notice is barred by limitation under Section 11A of the Central Excise Act. It is true, Section 11A prescribes a limitation of six months but the proviso to Section 11(A)(1) expressly provides that where the duty of excise has been short paid or not paid' by reason of fraud, collusion or any wilful misstatement or suppression of fact, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty' the period of limitation gets extended to five years. In this case, annexure-A to show cause notice, expressly recites that the petitioner has been guilty of suppression of material facts. If so, the notice cannot be said to be barred by limitation at this juncture. Whether there has been any suppression of material facts and/or whether any of the grounds mentioned in the proviso to Section 11A(1) are existing or not, is a question of fact and this is a matter for the Superintendent or other appropriate Central Excise Officer to determine. It is obvious that if on inquiry it is found that none of the grounds specified in the said proviso exist, period of limitation will be six months only. It is equally obvious that if any of the grounds mentioned in the proviso are found to have been established, the period of limitation would be five years.
3. At this stage it is not possible for us to express any opinion on the question whether there has been any suppression of material facts on the part of the petitioner or not. It is a disputed question of fact which cannot be investigated conveniently in this writ petition.
4. It is evident that it shall be open to the petitioner to raise all such objections as are open to him in law in response to the show cause notice. The proceedings in pursuance of the impugned show cause notice shall be concluded as expeditiously as possible since the notice was issued as far back as 1983.
5. The writ petition is accordingly dismissed with above observations. No costs.