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Judgment
Ramaprasada Rao, J.—The short facts which arise in this writ petition can be stated thus. The petitioner is a wholesale trader carrying on
trade in manufacturing non-duty paid tobacco under Central Excise Licence No. 31/64. On 28th May 1965, it is common ground that the Central
Excise officials inspected the petitioner''s warehouse and according to their check report a quantity of 1730 kgs of tobacco had been substituted
and there was a shortage of 5738 kgs of tobacco in the warehouse. Consequently a show cause notice was issued on 21st December 1967,
calling upon the petitioner to show cause why 1730 kgs of tobacco said to have been substituted be not confiscated and a penalty imposed under
the appropriate rules and duty be levied on 7408 kgs of tobacco which were on a totality of events found to be missing. The petitioner explained.
His explanation was accepted in so far as the charge of substitution was concerned. But as regards the alleged shortage, his explanation was
rejected. In the result, the petitioner was called upon to pay a duty of Rs. 11000 besides other ancillary penalties levied on the petitioner. The
petitioner''s appeal to the appellate authority as well as the revisional authority was unsuccessful. But the revisional authority, namely, the 1st
respondent, modified the penalty, but we are not very much concerned with the quantum of penalty in this case. Mr. Chellaswami, learned counsel
for the petitioner, took up a legal contention, which seems to be formidable, that the proceedings initiated by the department in December 1967 for
an irregularity or illegality or contravention of the provisions of the Central Excise Act was beyond the prescribed time and therefore the
consequential decision resulting in the imposition of penalty should be deemed to be a nullity in the eye of law and non est for purpose of
implementation. He has also raised other factual contentions that the 1st respondent failed to give reason in support of his order and therefore it is
non-speaking, he would also state that the decision of the appropriate authorities under the Act, having regard to the peculiar contentions made by
the petitioner on the merits, is arbitrary and violative of the principles of natural justice. R.160 of The Central Excise Rules is relied upon. The
counsel for the department would state that S.40(2), on which reliance is placed by the learned counsel for the petitioner to sustain his plea of bar
of limitation, is not applicable to the proceedings initiated by the department under the Act and therefore the preliminary objection regarding the
non-availability of power to take action in December 1967 for a cause of action which occurred in May 1965 is untenable. S.40 of the Central
Excise and Salt Act, 1944, prescribes the time limit for institution of suits and other legal proceedings and creates a positive bar for institution of
such actions beyond the prescribed limit of time. Inter alia S.40(2) runs as follows:--
No suit, prosecution or other legal proceedings shall be instituted for anything done or ordered to be done under this Act after the expiration of six
months from the accrual of the cause of action or from the date of the act or order complained of.
The text of this provision is clear that no statutory functionary under the Act can take any proceeding or institute a suit or prosecute for an alleged
offence any person who failed to do anything which he was ordained under the Act to do if the act complained of is beyond the period of six
months from the date when action is initiated. This limit of time is positive and inescapable. After the expiry of this period of time, even though there
is an apparent cause of action as is seen from the record or from the material available, such a cause of action cannot be furthered by any avert
action such as a suit, prosecution or other legal proceeding under the Act. The words ''anything done or ordered to be done under this Act is all
embracing and world include any statutory duty which a person has to perform under the Act. One such statutory duty which a licencee under the
Act has to do is to pay the excise duty over the stock removed from the warehouse. If he unauthorisedly removes the same without subjecting such
goods to excise duty and without accounting for such duty in any manner and In the result evades such duty, then the cause of action to bring to
book such actions of the delinquent licensee would arise on the date of that act or on the date when a complaint is made about such an act. In such
cases of evasion of duty it would be rather difficult to find out the date of the act. But when the warehouse is inspected and if the removal is
detected then at that point of time the department secures knowledge of the act because they begin to complain of that act and as soon as they
secure such knowledge and they are in a position to complain of such an act done by the licencee, then the limit of time begins to run and the cause
of action has accrued on that state and automatically it would empire with a period of six months from such accrual of cause of actions. That this is
the intention of the language used by the Legislature in Sec. 40 is also clear from the decision of the Supreme Court reported in Public Prosecutor
Madras v. Raju (1972)-2 S.C.C. 410. At page 417 the learned Judges understanding the word ''act'' in juxtaposition to such a word appearing in
the General Clauses Act observed:--
These decisions in the light of the definition of the word ''act'' in the General Clauses Act establish that non-compliance with the provisions of the
statute by omitting to do what the Act enjoins will be anything done or ordered to be done under the Act. The complaint against the respondent
was that they wanted to evade payment of duty.
Therefore, the Supreme Court was of the view that evasion of duty is one of the acts which a licencee/ought not to do as he is not enjoined to do
so under the Act. This was brought to the notice of the authorities in May 1965 as is seen from the Inspector''s report. The show cause notice is
based on the said inspection report made in May 1965. The cause of action in the instant case therefore should be deemed to have arisen on 28th
May 1965 when the alleged delinquency of the petitioner was brought to their notice. No action was taken for a period of six months from that
date. Thus the limit of time for taking action against such an accrued cause of action has expired. Therefore the department had no jurisdiction to
resurrect a dead cause and issue a show cause notice on 21st December 1967 and deal with the subject-matter as if it was a live cause of action
on which adjudication proceeding could be undertaken. I am of the view that the entire adjudication proceedings are without jurisdiction and the
petitioner, therefore, is entitled to a rule in the nature of certiorari to remove all such orders connected with such an irregular adjudication. It is not
necessary to go into the other contentions. As action has been taken beyond time in contravention of S.40(2) of the Act the rule nisi is made
absolute and the writ petition is allowed. There will be no order as to costs.