AJOY NATH RAY, J. ( 1 ) THIS is a writ application challenging a show cause notice dated 28th March, 1990, whereby a claim for unpaid Central Excise Duty is made by the respondent authorities for the period of 1-4-1985 to 31-7-1985. ( 2 ) THE respondent authorities have not yet been asked to file any Affidavit-in-Opposition but I am of the opinion that no such affidavit is necessary as the said show cause notice is bad in law as apparent on the face of it. ( 3 ) AN earlier show cause notice was issued for recovery of Central Excise Duty and for penalty upon the same writ petitioner for the years 1979-80 to 1984-85, all the years ending with the 31st of March. The earlier show cause notice is dated 25th April, 1986. ( 4 ) IT is clear from the said earlier show cause notice that Central Excise Duty was being sought to be recovered, upon the twin allegation, that the number of workers at the factory of the writ petitioner, was, according to the respondent, more than what was declared by the writ petitioner, and that the annual turnover of the writ petitioner for the aforesaid years was in excess of Rs. 30,00,000/- excepting for only the year 1980-81. These were all revealed, as the earlier show cause notice itself states, pursuant to the first visit of the authorities to the writ petitioner's premises on 21st February, 1985 and subsequent proceeding had thereafter. ( 5 ) THE instant show cause has come nearly five years late. In case the month of July 1990 had elapsed without the service of the show cause notice the period of 1-4-1985 to 31-7-1985 would have been outside the period of limitation as envisaged under Section 11a of the Central Excises and Salt Act, 1944. ( 5 ) THE instant show cause has come nearly five years late. In case the month of July 1990 had elapsed without the service of the show cause notice the period of 1-4-1985 to 31-7-1985 would have been outside the period of limitation as envisaged under Section 11a of the Central Excises and Salt Act, 1944. The said Section and its relevant proviso are set out hereunder :-"section 11 A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words "central Excise Officer", the words "collector of Central Excise and" for the words "six months", the words "five years" were substituted. " ( 6 ) ON the basis of the said Section and the said proviso it is quite clear that in case a show cause notice is served beyond the period of six months the said show cause notice must state on the face of it as to how the notice is being sent beyond six months but within five years by reason of the case coming within the ambit of the proviso to that Section. Without such an expression of how the respondents seek to invoke their power of recovery beyond the period of six months the party intended to be affected would not know how to answer that point and in that event would be deprived of its legal right of taking and establishing the point of limitation. Without such an expression of how the respondents seek to invoke their power of recovery beyond the period of six months the party intended to be affected would not know how to answer that point and in that event would be deprived of its legal right of taking and establishing the point of limitation. ( 7 ) IN the instant case there is no statement which in my opinion sufficiently invokes the proviso to Section 11a. The portion of the show cause notice as challenged which is relevant in the above regard is stated below :-"m/s. S. D. B. Chemical Manufacturing Co. (P) Ltd. , took out a Central Excise Licence in form L. 4 No. 6/nes-68/adhesive/r-2/i/85 dated 24-9-1985 as per Government of India Notification No. 178/85-CE dated 1-8-1985. They submitted a Classification List bearing No. 1/85-86 effective from 1-8-1985 (Range C. No. 41/-85-86/c/r. 2/1 dated 7-10-1985) without claiming any exemption under Notification No. 71/85-CE dated 17-3-1985 as amended by Notification No. 118/85-CE dated 8-5-1985 or Notification No. 178/85-CE dated 1-8-1985 as their aggregate value of clearance for home consumption during the preceding financial year 1984-85 exceeded Rs. 75 Lakhs (Actual value of clearance was Rs. 91,77,454. 18 since the factory of the assessee is regarded as the factory under Section 2 (m) of the Factory Act, 48 they were not eligible for exemption under Notification No. 46/81 dated 1-3-1981. They are liable to pay Central Excise duty @ 12% (Basic) with effect from 1-4-1985 also for the goods manufactured and cleared by them since they, because of the reasons stated above, were not entitled to the benefit given under Notification No. 46/81 dated 1 3-1981. The assessee did not disclose this fact to the Central Excise Department till it was detected by the Central Excise Officers. Hence the assessee appears to have suppressed the fact with the intent to evade payment of Central Excise duty. "on the basis of the above statement it would appear that the respondents have made allegations that appropriate disclosure was not made by the writ petitioner and that the writ petitioner has also suppressed facts. I am not to enter into these questions if I am to set aside the show cause notice on a preliminary point of jurisdiction. "on the basis of the above statement it would appear that the respondents have made allegations that appropriate disclosure was not made by the writ petitioner and that the writ petitioner has also suppressed facts. I am not to enter into these questions if I am to set aside the show cause notice on a preliminary point of jurisdiction. ( 8 ) THE point about which the above paragraph in the show cause notice is totally silent is as to how by reason of the alleged non-disclosure or suppression the excise duty for the period 1-4-1985 to 31-7-1985 failed to be levied by the respondents. In view of the fact that the first visit to the petitioner's premises in this regard was on 21-2-1985, it remained for the respondents to give some facts or even make a bare statement in the show cause notice itself whereby the writ petitioner could be asked to meet a case of non-levy of duty for the relevant period by reason of the suppression or non-disclosure by the writ petitioner itself. To speak simply, on and after 21-2-1985 the cat, if any, was already out of the bag and non-levy of Central Excise Duty thereafter could not be by reason of the writ petitioner continuing to hide the cat in the bag any longer. ( 9 ) SINCE there is no allegation in the show cause notice stating either at all or how by reason of the writ petitioner's alleged suppression or non-disclosure of facts the levy of Central Excise Duty came not to be imposed for the period 1-4-1985 to 31-7-1985, the show cause notice dated 28th March, 1990 is outside the four corners of Section 11a proviso of the said 1944 Act. ( 10 ) THE writ petition accordingly succeeds on the combined reading of the two show cause notices mentioned above. There will be a writ absolute in terms of prayer (a) of the writ petition. Proceedings, if any, had upon the said show cause notice in accordance with the liberty given by this Court on 28th August, 1990, shall also be quashed by way of a similar writ absolute and there shall be a writ absolute in the nature of prohibition restraining any further proceedings upon the quashed show cause notice. There will be no order as to costs.