ORDER
S. Kalyanam, Member (J)
1. No. E/Stay/364/87/MAS. -This is an application seeking stay of ail proceedings now pending against the petitioner before the Collector of Central Excise, Cochin, in pursuance of a .Show Cause Notice dated 16-4-1986. The petitioner is sought to be proceeded against in adjudication in respect of the alleged removal of branded beedies between 1-10-1980 to 30-9-1985 clandestinely without payment of Central Excise Duty under the Central Excises and Salt Act, 1944 (the ‘Act’ for short). A Show Cause Notice dated 16-4-1986 in respect of the alleged clandestine removal was served on the petitioner on 19-4-1986. The petitioner moved the High Court of Judicature at Kerala in Writ proceedings seeking for a direction for deciding the question of jurisdiction of the adjudicating authority as a preliminary issue and in purusance of the order of the Kerala High Court, the adjudicating authority decided that question against the petitioner as against which the petitioner has come by way of an appeal before us and seeks stay of adjudication proceedings pending disposal of the appeal before us.
2. We propose to dispose of the appeal itself today since we have already heard the petitioner for considerable length of time on the question relating to limitation under the Act, the only question argued before us. In this view of the matter, this petition is dismissed.
3. A.No. E/260/87/MAS. – As stated above, the appeal is against the order of the Collector of Central Excise, Cochin, dated 7-4-1987, rejecting the appellant’s contention that the Show Cause Notice dated 16-4-1986 calling upon the appellant to show cause against levy of duty for the alleged removal of branded beedies in a clandestine manner during the period 1-10-1980 to 30-9-1985 is not legally tenable.
4. The learned counsel, Shri Suganapalan, appearing for the appellant, contended that the proviso to Section 11A of the Act permitting the Department to invoke an extended period of limitation viz. five years in case of suppression would become operative only prospectively from the date on which Section 11A of the Act was put into Statute Book and not retrospectively. In this view, the learned counsel contended that the very Show Cause Notice dated 16-4-1986 is totally without jurisdiction, incompetent and honest. Heard Shri K.K. Bhatia, the learned S.D.R.
5. We have heard the learned counsel for a considerable length of time on the question of validity of the Show Cause Notice dated 16-4-1986 and the competence of the adjudicating authority in issuing the same. We do not find any substance in the plea of the learned counsel in regard to the same. Admittedly this is a case where action is sought to be initiated by the authorities in terms of Rule 9(2) of the Central Excise Rules on an allegation that excisable goods viz. branded beedies, were clandestinely removed by the appellant during the period 1-10-1980 to 30-9-1985. Rule 9(2) will have to be read along with Section 11A of the Act and this would make the position abundantly clear that in a situation like the present one where the allegation of the Department is that excisable goods were clandestinely removed by a person, it is perfectly open to the Department to have recourse to the proviso to Section 11A of the Act by invoking the extended period of limitation in respect of the liability of the duty by issuing a Show Cause Notice and that is precisely what would appear to have happened in the present case. The plea of the learned counsel that Section 11A of the Act would be only operative prospectively and not retrospectively, cannot be countenanced and such a construction would lead to a very anomalous situation of an authority waiting for a person to commit an act of clandestine removal in future to invoke this provision. Since adjudication proceedings are already pending and since the matter relates to the alleged clearance of excisable goods clandestinely without payment of duty from the year 1980 to 1985 referred to supra, we direct that the adjudication may be taken up and disposed of as expeditiously as possible. We would like to make it clear that the issue canvassed and decided in the above appeal is only with reference to the limited question relating to limitation envisaged under Section 11A and it is certainly open to the appellant to canvass all other questions open to him under law before the adjudicating authority. In the result, the appeal is dismissed.