ORDER
Sugla, J.
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 Section 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 Section 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 Section 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:
(i) where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded ;
(ii) …by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made.
(iii) …with intent to evade payment of duty….
In view of the recent Supreme Court decision holding that the post manufacturing expenses are part of the cost for the purpose of levy of excise duty, it cannot perhaps be disputed that factually it is a case of short-levied or short-paid excise duty. However, this is not enough. The second condition is that the short-levied payment of duty should have been by reason of fraud, collusion etc. In the present case it can at best be a case of wilful mis-statement or suppression of facts. This aspect certainly requires investigation, particularly as in the order passed by the Collector (Appeals) in the year 1977 in the Assessee’s own case (copy in W.P. is on record) shows that the post manufacturing expenses were held to be not a part of the cost for the purpose of levy of excise duty, it is not clear whether the Assessee had shown full details of all post manufacturing expenses separately in the statements to be submitted before the excise authorities. The statements filed for the material period do not certainly indicate the post manufacturing expenses separately. In the premises, it is difficult to come to a definite conclusion either way, that is, whether the assessee made or did not make a wilful mis-statement or suppression of facts. Last but not the least, even if the first two conditions precedent are satisfied, it is not enough for the application of the proviso. The first two conditions must also be fulfilled with an intent to evade payment of duty. Here again it will require examination at length whether, when in view of this Court’s decision them prevailing there was no under-payment of duty but the matter was pending before the Supreme Court, it can or cannot be a case of suppression or mis-statement of facts with intent to evade payment of excise duty.
3. Having regard to the above discussion and keeping in view the ratio of the Supreme Court decision in the case of Mysore Rolling Mills Private Limited v. Collector of Central Excise, Belgaum, and this Court’s decision in the case of Goa Bottling Co. Pvt. Ltd. v. 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.
The petition is summarily rejected with no order as to costs. Status quo to continue for four weeks on order.