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8. Under the proviso, if any duty of excise has not been levied by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or any of the rules made thereunder with intent to evade payment of duty, then the period is five years for issuing show cause notice and not six months as provided in the main part of the Section viz., clause (1) of Section 11A of the Act. The question is whether the petitioner is guilty of misstatement of fact or suppression of fact or contravention of any of the provisions of the Act. Inasmuch as the petitioner has not chosen to challenge the classification in these proceedings, I have to proceed on the footing that the petitioner's product will fall under Tariff Item No. 68 and not Tariff Item No. 23 as claimed by the petitioner. I have also to proceed on the footing that the petitioner's product cannot be claimed to be Sagol entitled to the exemption from duty under the notification of 1970.

9. In those circumstances, the only question will be whether there was misstatement of facts by the petitioner. There is no doubt about the same as the petitioner has throughout been making a claim before the Department that his product is nothing but Sagol and is entitled to exemption under Notification of 1970. The said contention having been found against and not challenged in these proceedings, I have to hold that there was a misstatement of facts on the part of the petitioner and consequently, the proviso to Section 11A(1) of the Act can be invoked by the Department.

12. A perusal of the above passages in the order show that there was a deliberate misstatement on the part of the petitioner with regard to the classification of the product and the entitlement of the same to exemption under the notification of 1970. Once it is made out that there was misstatement of facts has regards the eligibility of the product for exemption, it follows that the proviso to Section 11A of the Act would apply.

13. Even though a remedy by way of appeal is available to the petitioner, it has not chosen to avail of it but has come to this court under Article 226 of Constitution of India. The scope of the enquiry under Article 226 of the Constitution is limited and it is not possible for this Court to reverse the conclusions of facts which are based on materials available before the authorities. In fact, an objection is taken by the respondents that as an efficacious alternative remedy is available to the petitioner, the writ petition is not maintainable. No doubt the petitioner has not stated in the affidavit filed in support of the writ petitioner as to why the remedy of appeal is not efficacious and why it has chosen not to avail of the same. On the other hand, the statement in the affidavit as found in paragraph 20 is that the petitioner has no efficacious alternative remedy. But, the writ petition was admitted in 1989 and nearly four years have elapsed since the filing of the writ petition. It is not proper for this Court at this state to conclude that the petition is not maintainable.

14. As the question of limitation depends on the facts of the case and it has to be decided whether there was a misstatement of facts on the part of the petitioner, the conclusions of fact arrived at by the concerned authority in the impugned order have to be accepted as they do not suffer from any error apparent on the face of the record. There is no error of jurisdiction.

15. The fact that the Department was aware of the manufacture by the petitioner and that samples have been taken by the Department on more than one occasion would not alter the situation. What is required for the proviso is a misstatement of fact on the part of the person concerned and not the knowledge of the Department about the manufacture of the particular product.