TMI Blog1986 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ty should not be imposed on them under sub-rule (1) of Rule 173Q of the Central Excise Rules. 1944. (iii) Why plant and machineries etc. valued at Rs. 35,47,400.00 said to be belonging to them and used in connection with manufacture production, storage, removal etc. of (Glucose in liquid form mentioned at Sr. No. (1) above, in respect of which prohibitory order has been issued by the Superintendent, Customs and Central Excise (Preventive) Headquarters office, Baroda under letter No. IV/6-Prev/GR-IV/15/85 dated 20-4-1985 should not be confiscated under Rule 173-Q (2) of the Central Excise Rules, 1944, in the light of the provisions of clause (a) thereto." 2. It is stated in the show cause notice that the same is issued under the provisions of sub-section (1) of Sec. 11A of the Central Excises and Salt Act, 1944 read with Rule 9(2) of the Central Excise Rules, 1944. It is also stated that the Penalty is claimed through the notice under sub-rule (1) of Rule 173Q of the Central Excise Rules, 1944. The notice further states that the confiscation of the plant and machineries is mentioned under the powers vested with the authorities concerned as per Rule 173Q(2) .of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in this writ petition before the Tribunal, the petitioner has come forward with this Special Civil Application since it involves jurisdictional questions. 6. Mr. Nanavati, the learned Counsel for the petitioner states that .even though the show cause notice can be issued by a proper officer, the adjudication can be made, as the law stood then, only by the Assistant Collector of Central Excise. Since in this case the Collector has made adjudication, learned Counsel for the petitioner submits that the order is non est and as such this Court has to quash the order passed subsequently by the Collector concerned. As far as the Section 11A is concerned, it has been amended subsequently by inserting the word 'Collector of Central Excise in addition to' Assistant Collector, Central Excise' as it stood originally. Even if the matter is remanded now, the notice and the adjudication can be made by the Collector as at present, but as it is, it is the submission of Mr. Nanavati that since the impugned order is passed prior to the amendment, the adjudication effected by the Collector is not maintainable. Section 11A reads as follows, as it originally stood. 11 A: Recovery of duties not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and any adjudication made by the Collector cannot be sustained. When such is a clear position of law the learned Counsel states the question of jurisdiction arises in this case and as such, the petitioner is entitled to invoke the jurisdiction of this Court by a writ petition under Article 226 of the Constitution. 9. The next contention of Mr. Nanavati is that the petitioner cannot get effective redressal before the Tribunal since the petitioner has to deposit the duty and the penalty demanded before the petitioner argues the case before the Tribunal concerned. For this purpose, he reads Sec. 35F of the Central Excises and Salt Act and the same reads as under :- "35F. Deposit, pending, appeal, of duty demanded or penalty levied:- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied; Provided that where in any particular case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the party concerned has clandestinely removed the excisable goods and as such the correct provision to be applied is Rule 9. If that be so, the proper authority is the Collector for the purpose of adjudicating such violation of the provisions of Central Excise Rules. According to Mr. Qureshi, all these questions can be agitated before the Tribunal and a decision can be got through proper authorities constituted for this purpose. 13. Mr. Qureshi also cited the decision reported in AIR 1971 S.C. 2039 wherein it is stated that to attract sub-rule 9(2), the goods should have been removed clandestinely and without assessment. According to Mr. Qureshi, the petitioner has come under the mischief of this Rule 9(2) since they have clandestinely removed the excisable goods. 14. Mr. Qureshi also cited the decision of the Supreme Court reported in AIR 1983 S.C. 603 for the proposition that when the Act provides for a complete machinery to challenge the order of assessment, the impugned order of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226. It is incumbent upon the party concerned to go as provided by the Act through the gamut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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