TMI Blog2005 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... waives service on behalf of respondents No.1 to 4 and Mr. S.N. Thakkar waives service on behalf of respondent No.5. Considering the nature of the controversy involved in the petition, the matter is taken up for final hearing and disposal today. 3. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioner primarily challenges the Order-in-Original No. CCE-III/TRC/01/ANI/ELASTIC/COMMR/2005-06 dated 22nd September, 2005 passed by the Commissioner, Central Excise-III, respondent No.2 herein. 4. The facts briefly stated are that the petitioner is a proprietary concern engaged in the manufacturing of Elastic Tapes of various kinds. The petitioner purchased manufacturing unit No.2005/A G.I.D.C., Chhatral he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice is decided by the Commissioner. 7. Pursuant to the aforesaid order of this Court, the petitioner made a representation dated 22nd November, 2004. After hearing the petitioner, respondent No.2, Commissioner of Central Excise, passed the impugned order rejecting the representation of the petitioner and directing the Superintendent of Central Excise to recover the amount of Rs.35,23,990.72 by way of attachment of plant and machinery, excisable goods, materials, preparations, vessels, utensils etc. which originally belonged to M/s. Urmi Enterprise and which are now in custody of M/s. Ani Elastics Industries. It is this Order-in-Original which is subject matter of challenge in the present petition. 8. On 27th October, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or attach the machineries of the petitioner which were not held by the erstwhile unit and were not purchased at the said auction. It was submitted that the amendment introduced by the Finance Act, 2004 in Section 11 of the Central Excise Act cannot be made effective retrospectively for recovery of duty prior to 1999. It was submitted that the impugned action of the respondents in seeking to recover dues of the year 1998 of the erstwhile unit by resorting to the amended provisions of the Act which had been brought on the statute book in 2004 was barred by the law of limitation as under the provisions of the Act it is not permissible for the respondents to recover duty after the lapse of a period of five years. It was further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding duty liability of M/s. Urmi Enterprise. 12. Mr. Malkan, appearing on behalf of the respondents, was not in a position to dispute any of the contentions raised on behalf of the petitioner. It was submitted that the Court may pass appropriate orders in the matter. 13. As can be seen from the impugned order dated 22nd September, 2005, the Commissioner of Central Excise has held that recovery proceedings can be initiated under the amended Section 11 of the Act even though dues may have arisen earlier and that such action does not amount to giving retrospective effect to the amendment. It has also been held that Section 11 of the Act, under which the present proceedings are taken, does not prescribe any time limit for taking actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation prescribed, the power must be exercised within reasonable time. In the said case the power exercised beyond a period of one year was held to have been exercised beyond a reasonable time. In the circumstances, this Court is not satisfied that the respondents have exercised powers under Section 11 of the Act within a reasonable period of time. The lapse of a period of five years in seeking to recover the dues of the erstwhile unit from the auction purchaser, namely, the petitioner, is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. Therefore, the impugned order cannot be permitted to stand. 15. In the result, the petition is allowed. The impugned order dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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