M.N. Roy, J.
1. Mr. Banerjee has filed an affidavit-in-opposition for which no leave was taken. In fact, on the last occasion, when the matter was heard in part, he wanted to file the affidavit-in-opposition, which was not allowed. At that time, of course, he submitted that under the Appellate Side Rules, such affidavit may be filed 24 hours before the hearing of the case. He also submitted that although this affidavit was filed on 20th of January, 1976, a copy of the same could not be served on the learned Advocate for the petitioner, as he is not generally available in this Court. Such submissions of Mr. Banerjee, in my view, have got no substance, since on a reference to the petition of motion, it appears that one Mr. Hemanta Kumar Roy Chowdhury, who incidentally is the registered clerk of Mr. P. K. Ghose, Advocate, has identified the petitioner. In that case, it was expected of Mr. Banerjee, to have the affidavit served in due time on the said Sri Hemanta Kumar Roy Chowdhury. He has of course stated that Mr. Roy Chowdhury was approached, but he has refused to accept the said affidavit-in-opposition. Be that as it may, since the affidavit was not served on the other side in time, I am not inclined to allow the respondents to use the affidavit in this proceeding.
2. The petitioner firm M/s. I.R.P. (Radio) (P) Ltd. (hereinafter referred to as the said firm), has impeached the orders in Annexures A., B., C and D to the petition, as made and issued by the authorities of the Central Excise Department.
3. The said firm, admittedly is a manufacturer of radios and has its office at 35, Chittaranjan Avenue, Calcutta and the factory at 7/V, Garcha Second Lane, Calcutta-17. They have futher alleged that apart from that, they are manufacturers of wireless receiving sets under the authority of the Central Excise licence, which has been renewed from year to year and is still subsisting.
4. It appears that on or about 13th May, 1966, on the strength of a search warrant, a Deputy-Superintendent of Excise, searched the office and factory of the said firm and took into custody certain books of accounts and records. It has, of course, been alleged that apart from such books and records, certain wireless sets were also seized. This fact appears to be incorrect from a reference to the copy of the seizure list, which was produced by Mr. Banerjee and shown to the learned Advocate for the petitioner. Such search and seizure was admittedly made on 13th of May, 1966. Thereafter, on or about 14th June 1967, the notice in Annexure A, against the said firm was issued, whereby they were asked to show cause to the Assistant Collector concerned as to why penalty should not be imposed on them as per Rules 9(2), 52A, 210 and 226 of the Central Excise Rules, 1944 and furthermore why the total Central Excise duty including special excise duty as mentioned in the notice in question, should not be recovered from them-
5. The said firm admittedly showed cause, wherein amongst others, it contended that the notice as mentioned hereinbefore, was irregular or could not be given effect to or acted upon as since the notice was issued one year after the purported seizure, the said notice was also contended to be incompetent. That same was barred by time under Section 110(2) of the Customs Act. apart, on merits also it was contended that search and seizure or the initiation of the proceeding was improper, irregular, void and illegal. Such representation of the petitioner, was admittedly rejected by the Assistant Collector of Central Excise, by his order dated 19th June, 1968 (Annexure B). The defence regarding limitation as mentioned hereinbefore has been recorded in the said determination and the same has also been determined, holding inter alia amongst others that Section 110(2) of the Customs Act had no application in the facts of the present case. A further appeal was taken which was also rejected by the order in Annexure C, wherein amongst others, it has also been made clear that the said Section 110(2) has no application, since only the books and records were seized and not only goods including wireless receiving sets. A revisional application was unsuccessful and it has been specifically recorded in the said revisional order, that the books which were so seized, would not come under Section 110(2), but they are covered by Section 110(3) of the Customs Act and such limitation as prescribed under Section 110(2), was not available.
6. Mr. Chakraborty appearing in support of the Rule, took us through the entire proceeding as mentioned hereinbefore and submitted first on the point of limitation and thereafter on the question of violation of natural justice, as according to him no hearing was given to the said firm. So far as the point of limitation is concerned, after considering the arguments and the determinations as mentioned hereinbefore, i do not find that any ground has been made out for interference. Admittedly, in the instant case, nothing excepting the books of accounts were seized and as such Mr. Banerjee is right in his submissions that they would come under the provisions of Section 110(3) and not under Section 110(2) and as such, limitation as prescribed would have nc application. Mr. Chakraborty, on the question of limitation, also referred to Section 40(2) of the Central Excises and Salt Act, 1944 and submitted that the view of the limitation prescribed therein, the initiation of the proceeding in the instant case was also improper. Such limitation as mentioned in the said section, according to me, will have application in suits and not the present proceedings are concerned, and I am told that this view has been taken in a Division Bench judgment of this Court, in the case of Electro Casting Ltd. v. The Inspector, Central Excise and Ors. C.R. 1084 (W) of 1966, following the decision reported in Assitant Collector of Customs v. Shiva Glass Works. So, Mr. Chakraborty's contentions on the ground of limitation, according to me, have got no substance. Regarding the question' of violation of principles of natural justice, and that too on the basis as mentioned hereinbefore, it appears to me that such submissions are also devoid of any substance. From a reference to the successive orders and more particularly the orders in Annexures B and C, it would appear that the petitioner asked for inspection of the documents and in fact inspection of some of the documents was taken by them. But suddenly they changed their mind and refused to take inspection. When inspection was afforded and the said firm has taken recourse to such opportunity, it cannot but be held that there was no violation of any principles of natural justice.
7. In view of the above, the arguments of Mr. Chakraborty fail, so also the Rule. The Rule is thus discharged. There will be no order as to costs. Let it be recorded that apart from the grounds as mentioned herein before, no other point was argued.