WP(C) 759/2008 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Judgment & order (oral) The Petitioner Firm registered under the provisions of t he Central Excise Act, 1944 (in short, the Act ) by the present petition has ch allenged the notice dated 22nd January, 2008 issued by the Assistant Commissione r (Designated Recovery Officer), Central Excise, Dibrugarh asking it to pay a su m of Rs.9,36,110/- towards the excise duty payable and also intimating it that i n the event of failure to pay the said amount within 7 (seven) days from the dat e of service of notice, the required steps for realization of the said amount wo uld be taken under the provisions of the Customs (Attachment of Property of Defa ulters of Recovery of Government Dues) Rules, 1995. The grounds on which the sa id 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 b een made on 17th January, 2011, such notice of demand cannot be issued after exp iry 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) year s from the date of assessment as the maximum period of limitation prescribed und er Article 137 of the Schedule to the Limitation Act, 1963 (in short, the 1963 Act ) is 3 (three) years. [2] I have heard Mr. B.N. Sharma, learned counsel for the petitioner and Mr. M. Bhagabati, learned Central Government Counsel appearing for the resp ondents. [3] Mr. Sharma, learned counsel referring to the provisions containe d in Sub-Section (1) of Section 11-A of the Act has submitted that in case of no n payment of the excise duty by the person registered under the Act, the authori ty is required to issue demand notice within 1 (one) year from the date of asses sment of the duty payable by such person and as in the present case, the assessm ent was made on 17th January, 2001, such demand notice cannot be issued after 16 th January, 2002. According to the learned counsel, since the demand notice dat ed 5th September, 2002 was issued by the Superintendent of Excise after expiry o f 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 Commi ssioner, Central Excise, Jorhat and thereafter, the impugned notice dated 22nd J anuary, 2008 by the Assistant Commissioner, Central Excise, Dibrugarh, such dema nd notice dated 5th September, 2002 is illegal being contrary to the provisions of Section 11-A(1) of the Act and as such, on the basis of such demand notice, t he Assistant Commissioner cannot issue the certificate of demand dated 31st Augu st, 2006 and the impugned notice dated 22nd January, 2008. It has also been sub mitted by Mr. Sharma, learned counsel for the petitioner that in any case, the c ause of action for recovery of the duty payable by the petitioner having been ar ose on 17th January, 2007, i.e. the date when the assessment was made by the com petent authority, no recovery proceeding can be initiated and the petitioner can not be asked to pay the amount under the provisions of the Act, in view of the p eriod of limitation of 3 (three) years prescribed under the 1963 Act. Mr. Sharm a submits that hence the notice dated 22nd January, 2008 issued by the Assistant Commissioner of Central Excise, Dibrugarh needs to be interfered with. [4] Mr. Bhagabati, learned Central Government Counsel appearing for the respondents, on the other hand, submits that there is no period of limitatio n prescribed under Section 11-A(1) of the Act for issuance of notice of demand o r 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 re gistered under the Act either fails to pay the amount or when the duty is not le vied or not paid or short levied or short paid. Referring to the show cause not ices 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 file d by the respondents, Mr. Bhagabati, learned Central Government Counsel has subm itted that those show cause notices were issued within 1 (one) year from the rel evant date, i.e. the date when the duty was payable and as such, the provision o f Section 11-A(1) of the Act has been complied with. The learned Central Governm ent Counsel further submits that after issuance and service of such show cause n otice on the petitioner, the Superintendent of Central Excise has ascertained th e amount payable towards the excise duty, as required under Section 11-A(2) of t he 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 b y the jurisdictional Deputy Commissioner, Jorhat on 31st August, 2006, which was sent to the Assistant Commissioner, Central Excise, who is the Designated Recov ery Officer, Dibrugarh to take required steps for recovery of such duty from the petitioner and consequently the impugned notice dated 22nd January, 2008 was is sued by the Assistant Commissioner, Central Excise, Dibrugarh. It has also been submitted by Mr. Bhagabati that the provisions of the 1963 Act is not applicabl e to the proceeding under the Excise Act, as the provisions of the Limitation Ac t is applicable in suit or other proceeding initiated in the suit or the appeal or revision arising out of such suit or other proceeding. [5] I have considered the submissions of the learned counsel appeari ng for the parties and also perused the pleadings. [6] The petitioner in the pleadings has claimed that the amount paya ble as excise duty was ascertained by the competent authority on 17th January, 2 001 and thereafter, the notice of demand dated 5th September, 2002 was issued de manding payment of Rs.10,06,285/- for 4 (four) different periods. It, however, a ppears from the documents appended to the affidavit-in-opposition filed by the r espondents that since the petitioner did not pay the excise duty payable under t he provisions of the Act for different periods in the years 1998, 1999 and 2001, the show cause notices dated 24th April, 1998; 9th April, 1999; 15th June, 1999 and 13th November, 1998 were issued to the petitioner asking it to show cause a gainst the proposed levy of duty. Such show cause notices were issued as requir ed under Sub-Section (1) of Section 11-A of the Act within 1 (one) year from the relevant date. Issuance and service of such notices has not been denied by the petitioner. According to the petitioner, the amount payable was ascertained by the respondent authority on 17th January, 2001 and the demand notice was issued on 5th September, 2002, beyond the period of 1 (one) year from the date of the p eriod of assessment, which, according to it, is in contravention of the provisio ns contained in Sub-Section (1) of Section 11-A of the Act. [7] Sub-Section (1) of Section 11-A of the Act provides the period o f 1 (one) year, for the purpose of issuance of the show cause notice, from the r elevant date, where any duty of excise has not been levied or paid or has been s hort levied or short paid or erroneously refunded, whether or not such non levy or non payment, short levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or any other provisions of the Act or the Rules made thereunder. Such period of 1 (one) year is not for the p urpose of issuance of notice of demand, as contended by the petitioner. Sub-Sec tion (2) of Section 11-A of the Act requires the Central Excise Officer to deter mine the amount of duty of excise due from such person upon consideration of the representation, if any, filed by the noticee pursuant to the notice issued unde r Sub-Section (1). It appears from the materials made available that such order s were passed determining the amount of compensation payable, which according to the petitioner itself, was on 17th January, 2001. [8] Since in Section 11-A(1) of the Act does not stipulate the perio d of limitation within which the demand notice is to be issued, which stipulates the period of limitation for the purpose of issuance of show cause notice, whic h in the case in hand, were issued within the period of limitation, as prescribe d, the first ground of challenge to the impugned notice dated 22nd January, 2008 cannot be accepted and hence rejected. [9] As noticed above, the second ground of challenge to the impugned notice issued by the Assistant Commissioner is that in any case, the period of limitation for recovery of the amount due under Article 137 of the Schedule to t he 1963 Act being 3 (three) years, no proceeding for recovery of the amount asce rtained on 17th January, 2001 can be initiated by the respondent authorities aft er expiry of 3 (three) years. Such submission of the learned counsel also canno t be accepted, as the provision of the 1963 Act does not apply to the proceeding under the Act and it applies to the suit or other proceeding, as contemplated b y the 1963 Act. [10] That being the position, I do not find any merit in the writ pet ition and hence it is dismissed. [11] Interim order, if any, passed earlier stands vacated.