POONA BOTTLING CO LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard the learned Counsel for the petitioners and respondents. There is no dispute that the petitioners have an alternative remedy by way of appeal under the Central Excises and Salt Act, 1944 (For short 'ACT'). It is, however, contended that the remedy by way of appeal in this case is not efficacious and since the show cause notice issued under Sec. 11A of the Act is without jurisdiction inasmuch as it was issued beyond the time limit applicable in this case, this Court can and should entertain the petitioners' petition under Article 226 of the Constitution of India. In short, the question involved thus, is whether it is a prima facie case of issue of show cause notice under section 11A of the Act without jurisdiction i.e. out of time limit applicable in this case or whether this question can be answered only after going through a long drawn process of investigation into the facts and Law. Again there is no, dispute that if the assessee's case falls within the purport and scope of the proviso to Sec. 11A(1), the show cause notice will have to be held in time. In the premises, what requires to be considered is whether the case falls or does not fall within the four corners of the Proviso to Sec. 11A(1).

(2.) For the purpose of considering this aspect of the matter, it is desirable to mention that there are three conditions precedent for the application of the Proviso. They are:

(3.) Having regard to the above discussion and keeping in view the ratio of the Supreme Court decision in the case Mysore Rolling Mills Private Limited V/s. Collector of Central Excise, Belgaum, - and this Court's decision in the case of Goa Bottling Co. Pvt. LTd. V/s. The Additional Collector of Customs and Central Excise, Goa in Writ Petition No. 23 of 1986, dated 13th January 1987, we do not find this case to be a fit case for interference at this stage in writ jurisdiction.