Writ jurisdiction and extended limitation under excise law fail without proved suppression or wilful misstatement.

The HC held that writ jurisdiction was not excluded merely because the statutory appeal had been dismissed as time-barred, and it could still examine the legality of the show-cause notice and adjudication order. It also held that the extended limitation under the proviso to Section 11A of the Central Excise and Salt Act, 1944 could not be invoked without a clear allegation and finding of wilful misstatement or suppression of facts with intent to evade duty. As neither the notice nor the adjudication established that requirement, the extended period was unjustified and the demand could not be sustained; the notice and order in original were set aside.

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Issues: (i) whether the writ petition was maintainable despite the statutory appeal having been dismissed as time-barred; (ii) whether the extended period under the proviso to Section 11A of the Central Excise and Salt Act, 1944 could be invoked in the absence of any allegation or finding of wilful misstatement or suppression of facts.

Issue (i): Whether the writ petition was maintainable despite the statutory appeal having been dismissed as time-barred.

Analysis: The availability of judicial review was held not to be excluded merely because the petitioner had failed to obtain relief in appeal on limitation. The earlier authority on certiorari was distinguished from the merger principle relied upon by the revenue, and it was held that dismissal of the appeal as delayed did not take away the High Court's jurisdiction to examine the legality of the show-cause notice and adjudication order.

Conclusion: The writ petition was held to be maintainable.

Issue (ii): Whether the extended period under the proviso to Section 11A of the Central Excise and Salt Act, 1944 could be invoked in the absence of any allegation or finding of wilful misstatement or suppression of facts.

Analysis: The proviso to Section 11A requires wilful misstatement or suppression of facts with intent to evade duty. The show-cause notice and adjudication order did not contain a clear allegation or finding of wilful misstatement or wilful suppression, and the subsequent disclosure of functional details by the assessee did not establish the requisite intent to evade duty.

Conclusion: The invocation of the extended period was not justified and the demand could not be sustained on that basis.

Final Conclusion: The challenge succeeded, and the show-cause notice and the order in original were set aside, leaving the assessee entitled to relief.

Ratio Decidendi: The extended limitation under the proviso to Section 11A can be applied only when wilful misstatement or suppression of facts with intent to evade duty is expressly alleged and proved, and the High Court may exercise writ jurisdiction notwithstanding an appeal being dismissed as time-barred.

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