JUDGMENT : The petitioner, who is engaged in the business of manufacture and sale of gold, diamond, silver and other articles of jewellery, has filed the present writ petition challenging Ext.P19 show cause notice which, has been issued alleging contravention of certain provisions of the Central Excise Act, 1944, the Central Excise Rules, 2002, the Articles of Jewellery (Collection of Duty) Rules, 2016 and the CENVAT Credit Rules, 2004. 2. The principal contention of the petitioner is that Ext.P19 show cause notice is issued without jurisdiction and beyond the normal period of limitation provided in Section 11A(1)(a) of the Central Excise Act, 1944 and in the complete absence of circumstances which would enable the respondent department from invoking the extended period of limitation under Section 11A (4) of the Central Excise Act, 1944. It is also submitted that the activity of 'hedging' engaged in by the petitioner and which forms a subject matter of the show cause notice (at least in part) is clearly a trading activity and is clearly outside the scope of the provisions in the Finance Act, 1994 relating to levy of service tax. 3. Ms. Aparna Nandakumar, the learned Counsel appearing for the petitioner would contend that the show cause notice was issued beyond the normal period of limitation and there is absolutely no basis for the suggestion in Ext.P.19 that there was suppression or misstatement of facts by the petitioner with an intent to avoid the payment of duty, to invoke the extended period of limitation under Section 11A (4) of the Central Excise Act, 1944. It is submitted that in the absence of mens rea and suppression or misstatement with an intention to evade the payment of duty, the extended period of limitation cannot be invoked. It is submitted that all the materials which form the basis of show cause notice were matters clearly within the knowledge of the Department since 2018 and going by the law laid down by the Supreme Court, in such situations, the extended period of limitation cannot be invoked. It is submitted that all the materials which form the basis of show cause notice were matters clearly within the knowledge of the Department since 2018 and going by the law laid down by the Supreme Court, in such situations, the extended period of limitation cannot be invoked. The learned counsel appearing for the petitioner placed considerable reliance on the judgment of the Supreme Court in Continental Foundation Joint Venture, Sholding v. Commissioner of Central Excise, Chandigarh; I 2007 (216) ELT 177 (S.C.), to contend that suppression means failure to disclose full information with the intent to evade payment of duty and when facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. It is submitted that there is no ‘wilful’ suppression of facts and therefore, there cannot be suppression or misstatement of fact, for the purpose of applying the extended period of limitation. She cites the judgment of the Supreme Court in Nizam Sugar Factory v. Collector of Central Excise, A.P.; 2006(197) ELT 465 (S.C.), to contend that when relevant facts were within the knowledge of authorities, the allegation of suppression of facts and invocation of the extended period of limitation is not sustainable. The learned counsel placed reliance on the judgments of the Supreme Court in Padmini Products v. Collector of Central Excise, Bangalore; 1989 (43) ELT 195 (S.C.) and Jaiprakash Industries Ltd. v. Commissioner of Central Excise, Chandigarh; 2002 (146) ELT 481 (S.C.) and submitted that it is clear from the law laid down in the aforesaid judgments that for invoking the extended period of limitation, duty which is the subject matter of the notice should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful misstatement, suppression of facts or contravention of any provision in the act or the rules. It is submitted that mere failure to pay the duty which is not due to any fraud, collusion, wilful misstatement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation. It is submitted that the noncompliance of the conditional notification (introduced in February 2017) with regard to the manufacture of articles of silver jewellery and silver coins cannot be regarded as a suppression for invocation of the extended period of limitation. It is submitted that the noncompliance of the conditional notification (introduced in February 2017) with regard to the manufacture of articles of silver jewellery and silver coins cannot be regarded as a suppression for invocation of the extended period of limitation. She also relied on the judgments of this Court in Commissioner of Customs v. Cochin Minerals and Rutiles Ltd; 2010 (259) ELT 182(Ker.) and K.T. Murukan v. Commissioner (Appeals-I), Cochin ; 2017 (5) G.S.T.L 248, to contend that it is only in those cases where there is the willful and deliberate suppression of facts that such extended period of limitation is available to the department. It is submitted that an element of deception or malpractice is a necessary concomitant of wilful and deliberate suppression of fact. It is submitted that the petitioner herein had not deceptively suppressed any material facts. Reference is also placed on the judgment of Division Bench of the High Court of Calcutta in Commissioner of Service Tax-1, Kolkata v. Surya Vistacom Private Limited; Manu/WB/1037/2022 to reiterate the contention that there is no suppression of facts with an intent to evade tax and that no material is available with the department to make out a case of wilful misstatement or wilful suppression in order to invoke the extended period of limitation. It is argued that the impugned show cause notice also proposes to levy Service Tax on the activity of ‘hedging’ [an activity of trading where the dealer takes advance positions/enters into forward contracts on a commodity to prevent loss due to price fluctuations]. It is submitted that it is well settled that 'hedging' is a trading activity and is outside the ambit of the Finance Act, 1994. It is submitted that the question of application of the extended period of limitation and the proposal to levy service tax on 'hedging' activity are both issues touching upon the jurisdiction to issue the impugned show cause notice and therefore these issues ought to be adjudicated at this stage under Article 226 of the Constitution of India. 4. Mr P.R. Sreejith, the learned counsel appearing for the respondent department would contend that the writ petition is clearly not maintainable. It is submitted that a writ petition should not be entertained against a show cause notice. 4. Mr P.R. Sreejith, the learned counsel appearing for the respondent department would contend that the writ petition is clearly not maintainable. It is submitted that a writ petition should not be entertained against a show cause notice. It is submitted that all issues now raised by the petitioner can be raised before the authorities at the time of adjudication of the show cause notice. The learned counsel placed reliance on judgments of the Supreme Court in Special Director and another v. Mohd. Ghulam Ghouse and another 2004 (164) E.L.T 141 (S.C) and Union of India and others v. Coastal Container Transporters Association and others, 2019 (22) G.S.T.L 481 (S.C) to contend that a writ petition challenging the legality of a show cause notice should not be entertained by the High Court unless the issuance of notice was totally non-est in the eye of law for absolute want of jurisdiction. It is submitted that the lack of jurisdiction must be such that the law prohibits the issuing authority from investigating the facts which led to the issuance of the show cause notice. The learned counsel further submitted that there is absolutely no lack of jurisdiction in the issuance of the show cause notice warranting the invocation of the jurisdiction of this Court under Article 226 of the Constitution of India. The learned counsel states that the judgment of the Supreme Court in Assistant Commissioner of State Tax and others v. Commercial Steel Ltd., [2021] 93 GSTR 1 (SC), reiterates the well-settled proposition that a Writ petition under Article 226 can be entertained against a show cause notice and bypassing statutory remedies, only when there is a breach of fundamental rights, violation of principles of natural justice, absence of jurisdiction or challenge to the vires of the statute or delegated legislation. It is submitted that none of the aforesaid circumstances exist in the present petition. The learned counsel for the respondent submits that 'hedging' activity is not a subject matter of the show cause notice and the only issue that is sought to be adjudicated is whether the petitioner had availed ineligible CENVAT credit in respect of transactions which relate to such activity. The learned counsel for the respondent submits that 'hedging' activity is not a subject matter of the show cause notice and the only issue that is sought to be adjudicated is whether the petitioner had availed ineligible CENVAT credit in respect of transactions which relate to such activity. It is submitted that the materials on the basis of which Ext.P19 show cause notice was issued were collected during the course of an investigation conducted by the Preventive Unit at Kochi functioning under the Principal Commissioner of Central Tax and Central Excise, Kochi Commissionerate. It is submitted that the so-called documents submitted by the petitioner were so furnished to the Auditors appointed by the Comptroller and Auditor General of India and the discrepancies noted by the Comptroller and Auditor General were the subject matter of Ext.P17 show cause notice. It is submitted that the petitioner, knowing fully well, that the audit by the Comptroller and Auditor General has nothing to do with the investigation conducted by the Preventive Unit, has purposefully shown the address of the 2nd respondent in a wrong manner to make it appear, for the purpose of this writ petition, that both entities are the same. The learned Counsel for the respondent further submitted that the contention on behalf of the petitioner that the extended period of limitation cannot be invoked is not sustainable. He placed reliance on the judgment of the Supreme Court in ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48 , to contend that findings of fact on the question of jurisdiction would be a jurisdictional fact and the same is to be determined having regard to both fact and law involved therein. It is submitted that the question of limitation/applicability of an extended period of limitation is to be decided by the adjudicating authority based on facts and evidence produced by the parties. The learned counsel also placed reliance on the judgment of the Supreme Court in Kushal Fertilisers (P) Ltd. v. The Commissioner of Customs and Central Excise, Meerut, 2009 (238) ELT 21 (S.C.), and submits that the Supreme Court has observed as under:- “17. The learned counsel also placed reliance on the judgment of the Supreme Court in Kushal Fertilisers (P) Ltd. v. The Commissioner of Customs and Central Excise, Meerut, 2009 (238) ELT 21 (S.C.), and submits that the Supreme Court has observed as under:- “17. Whether non-furnishing of information was wilful and would amount to suppression of material fact in terms whereof the extended period of limitation as provided for in section 11A of the Customs Act, 1944 could be invoked or not, in our opinion, was not a substantial question of law. The finding of fact arrived at by the Tribunal should have been treated to be final. It would be binding on the High Court while exercising its appellate jurisdiction. A `substantial question of law' would mean – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. (see Boodireddy Chandraiah v. Arigela Laxmi, AIR 2008 SC 380 )” It is submitted that whether a party is guilty of suppression of fact or not, is a question of fact and that the petitioner must first raise objections before the authority who had issued the show cause notice. 5. Having heard the learned counsel for the petitioner and the learned counsel for the respondent, I am of the view that the petitioner is not entitled to succeed in this case. The reasons which compel me to take this view are :- (a) While it is settled that the question as to whether the extended period of limitation is to be applied or not is dependent on factors such as fraud, collusion, suppression, misstatement of facts etc., the question as to whether such circumstances exist or not, will have to be determined (at least at the first instance) by the adjudicating authority. It will be an improper exercise of the jurisdiction vested in this Court under Art.226 of the Constitution of India to determine the existence or otherwise of such circumstances at the stage of a show cause notice. It is no doubt, true that the question as to whether there were circumstances warranting the invocation of the extended period of limitation is justified or not is something which could be categorized as a 'jurisdictional issue'. Limitation, it is settled, is always a mixed question of fact and law. It is no doubt, true that the question as to whether there were circumstances warranting the invocation of the extended period of limitation is justified or not is something which could be categorized as a 'jurisdictional issue'. Limitation, it is settled, is always a mixed question of fact and law. The facts of the cases cited at the bar by the learned counsel for the petitioner also suggest that all of them were cases where the point as to whether the extended period of limitation was applicable or not had been decided after the entire adjudicatory process including appeals to the appellate tribunal had been concluded. The decisions relied on by the learned counsel appearing for the petitioner, in particular, the facts of the decision in Continental Foundation Joint Venture (supra) indicate that, that was a case where the question as to whether the extended period of limitation is to be invoked or not was considered by the adjudicating authority and by the Tribunal before the matter reached the Supreme Court. Again the facts in Nizam Sugar Factory (supra) show that the matter was initially adjudicated by the adjudicating authority and thereafter by the Tribunal before the matter reached the Supreme Court. Padmini Products (supra) is also a case where the matter reached the Supreme Court after adjudication and after the matter was considered by the Tribunal. Similarly, in Jaiprakash Industries Ltd. (supra), the matter had reached the Supreme Court after adjudication by the adjudicating authority and after the matter was confirmed by the Tribunal. The facts in Cochin Minerals (supra) also indicate that the matter had reached this Court after it was found by the Tribunal that there was no reason or ground to invoke the extended period of limitation. The decision of this Court in K.T. Murukan (supra) also indicates that the question as to whether the extended period of limitation was applicable, was adjudicated at least at the first instance by the adjudicating authority. Thereafter, the appeal filed by the petitioner was dismissed by the first appellate authority. It was in such circumstances that this Court considered the matter on merits. Thereafter, the appeal filed by the petitioner was dismissed by the first appellate authority. It was in such circumstances that this Court considered the matter on merits. This decision is not authority for the proposition that the question as to whether the show cause notice is barred by limitation is something that is to be adjudicated at the stage of show cause notice by this Court under Article 226 of the Constitution of India. In Mohd. Ghulam Ghouse (supra), the Supreme Court held:- “This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.” Recently in Radha Krishnan Industries v. State of H.P., (2021) 6 SCC 771 , it was held that the High Court has the discretion not to entertain a writ petition and that one of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. The decision is also authority for the well settled proposition that if the order or proceedings are wholly without jurisdiction the same could be challenged directly under Article 226. However it was held:- “When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion” (b) The contention that all the facts which form the basis of the show cause notice were available with the Department following ‘audit’ is not acceptable. Rule 5A (2) of the Service Tax Rules, 1994 as amended by the Service Tax (Third Amendment) Rules, 2014 empowers the officers of the Comptroller and Auditor General of India to seek the documents mentioned in that Rule from an assessee. The calling for or furnishing such details to the officers of the Comptroller and Auditor General of India cannot be deemed as ‘information’ in the hands of the Central Excise/Service Tax Department. It must also be noted that Rule 5A (2) of the Service Tax Rules 1994 was found to be ultra vires the Finance Act 1994 by a Division Bench of the High Court of Delhi in Mega Cabs (P) Ltd. v. Union of India, (2016) 91 VST 499. However that judgment has been stayed by the Supreme Court. Further, it is the specific stand of the respondent Department that, based on the documents retrieved by the audit team appointed by the Directorate of Audit (Central) Kochi Branch, Ext.P17 show cause notice had been issued to the petitioner. It is their specific case that the impugned show cause notice (Ext.P19) was issued to the petitioner on the basis of materials collected by the Headquarters, Preventive Unit, Kochi, which functions under the Principal Commissioner of Central Tax and Central Excise, Kochi Commissionerate. It is their specific case that the impugned show cause notice (Ext.P19) was issued to the petitioner on the basis of materials collected by the Headquarters, Preventive Unit, Kochi, which functions under the Principal Commissioner of Central Tax and Central Excise, Kochi Commissionerate. More over it appear from the record that the petitioner has surreptitiously described the address of the 2nd respondent (Superintendent, Central Tax and Central Excise, Ayyanthol Range) as being part of the office of the Principal Directorate of Audit (Central), Kochi branch to make it appear that the materials which are relied on in Ext.P19 show cause notice were very much available with the 2nd respondent and therefore, there is no basis for applying the extended period of limitation in issuing Ext.P19; (c) In the light of the categoric stand taken by the department that the impugned show cause notice does not relate, in any manner, to the activity of 'hedging', it cannot be said that the show cause notice is issued without jurisdiction (at least in so far as it relates to the activity of 'hedging'). In the result, this writ petition fails and is accordingly dismissed. The petitioner will be given thirty days time from today to reply to Ext.P19 show cause notice. After receipt of the reply of the petitioner, Ext.P19 show cause notice will be adjudicated in accordance with law. I make it clear that all the findings in this judgment are purely for the purpose of determining whether the impugned show cause notice is to be interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India and it will be open to the petitioner to raise all contentions including the contention that the extended period of limitation was not applicable before the adjudicating/appellate authorities.