(1.) The petitioner firm registered under the provisions of the Central Excise Act, 1944 (in short, "the Act") by the present petition has challenged the notice dated 22nd January, 2008 issued by the Assistant Commissioner (Designated Recovery Officer), Central Excise, Dibrugarh asking it to pay a sum of Rs. 9,36,110/ - towards the Excise duty payable and also intimating it that in the event of failure to pay the said amount within 7 (seven) days from the date of service of notice, the required steps for realization of the said amount would be taken under the provisions of the Customs (Attachment of Property of Defaulters of Recovery of Government Dues) Rules, 1995. The grounds on which the said notice issued by the Assistant Commissioner is put under challenge are that - (i) the assessment of the duty payable under the provisions of the Act having been made on 17th January, 2011, such notice of demand cannot be issued after expiry of 1 (one) year from the date of making such assessment, as has been done in the instant case; and (ii) in any case, the assessment having been made on 17th January, 2001, no notice of demand can be issued after expiry of 3 (three) years from the date of assessment as the maximum period of limitation prescribed under Article 137 of the Schedule to the Limitation Act, 1963 (in short, "the 1963 Act") is 3 (three) years. I have heard Mr. B.N. Sharma, learned Counsel for the petitioner and Mr. M. Bhagabati, learned Central Government Counsel appearing for the respondents.
(2.) Mr. Sharma, learned Counsel referring to the provisions contained in sub -section (1) of Sec. 11A of the Act has submitted that in case of nonpayment of the Excise duty by the person registered under the Act, the authority is required to issue demand notice within 1 (one) year from the date of assessment of the duty payable by such person and as in the present case, the assessment was made on 17th January, 2001, such demand notice cannot be issued after 16th January, 2002. According to the learned Counsel, since the demand notice dated 5th September, 2002 was issued by the Superintendent of Excise after expiry of 1 (one) year from the date of assessment, on the basis of which the subsequent certificate of demand dated 31st August, 2006 was issued by the Assistant Commissioner, Central Excise, Jorhat and thereafter, the impugned notice dated 22nd January, 2008 by the Assistant Commissioner, Central Excise, Dibrugarh, such demand notice dated 5th September, 2002 is illegal being contrary to the provisions of Sec. 11A(1) of the Act and as such, on the basis of such demand notice, the Assistant Commissioner cannot issue the certificate of demand dated 31st August, 2006 and the impugned notice dated 22nd January, 2008. It has also been submitted by Mr. Sharma, learned Counsel for the petitioner that in any case, the cause of action for recovery of the duty payable by the petitioner having been arose on 17th January, 2007, i.e., the date when the assessment was made by the competent authority, no recovery proceeding can be initiated and the petitioner cannot be asked to pay the amount under the provisions of the Act, in view of the period of limitation of 3 (three) years prescribed under the 1963 Act. Mr. Sharma submits that hence the notice dated 22nd January, 2008 issued by the Assistant Commissioner of Central Excise, Dibrugarh needs to be interfered with.
(3.) Mr. Bhagabati, learned Central Government Counsel appearing for the respondents, on the other hand, submits that there is no period of limitation prescribed under Sec. 11A(1) of the Act for issuance of notice of demand or the certificate of demand as the said provision prescribed the time limit for the purpose of issuance of the show cause notice only in the event the person registered under the Act either fails to pay the amount or when the duty is not levied or not paid or short -levied or short -paid. Referring to the show cause notices dated 24th April, 1998; 9th April, 1999; 15th June, 1999 and 13th November, 1998, which are annexed as Annexures -C to F to the affidavit -in -opposition filed by the respondents, Mr. Bhagabati, learned Central Government Counsel has submitted that those show cause notices were issued within 1 (one) year from the relevant date, i.e., the date when the duty was payable and as such, the provision of Sec. 11A(1) of the Act has been complied with. The learned Central Government Counsel further submits that after issuance and service of such show cause notice on the petitioner, the Superintendent of Central Excise has ascertained the amount payable towards the Excise duty, as required under Sec. 11A(2) of the Act, and on 5th September, 2002 notice of demand was issued. The petitioner having failed to deposit the said amount, the certificate of demand was issued by the jurisdictional Deputy Commissioner, Jorhat on 31st August, 2006, which was sent to the Assistant Commissioner, Central Excise, who is the Designated Recovery Officer, Dibrugarh to take required steps for recovery of such duty from the petitioner and consequently the impugned notice dated 22nd January, 2008 was issued by the Assistant Commissioner, Central Excise, Dibrugarh. It has also been submitted by Mr. Bhagabati that the provisions of the 1963 Act is not applicable to the proceeding under the Excise Act, as the provisions of the Limitation Act is applicable in suit or other proceeding initiated in the suit or the appeal or revision arising out of such suit or other proceeding.