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Challenge to show-cause notice for contravention of Central Excise Rules regarding manufacture and clearance of fertilizer without paying excise duty. Analysis: The judgment challenges a show-cause notice issued by the Assistant Collector of Central Excise for contravention of various Central Excise Rules related to the manufacture and clearance of fertilizer without paying excise duty. The petitioner contested the jurisdiction of the notice. The judgment delves into Rule 9(1) of the Central Excise Rules in 1979, which prohibited the removal of goods without payment of excise duty. It emphasizes that for sub-rule (2) of Rule 9 to apply, the goods must have been removed clandestinely and without assessment. Case laws, such as N.B. Sanjana v. E.S. & W Mills, were cited to establish the criteria for invoking sub-rule (2) of Rule 9. Further, references were made to cases like Murugen and Co. Pundukoila v. Deputy Collector of Central Excise Tiruchirapalli and Star Paper Mills Ltd. v. Union of India to highlight that if goods were removed under a bona fide belief of non-excisability or with department consent, sub-rule (2) of Rule 9 does not apply. The judgment stressed that intention to commit an offense leading to penalty and confiscation is crucial, and consent from the department removes the penal aspect. The controversy in this case revolved around whether the petitioner intentionally removed goods without informing the department and without paying duty. Despite arguments that the fertilizer was not excisable, the judgment focused on the non-applicability of sub-rule (2) of Rule 9. The petitioner's manufacturing process and interactions with the Central Excise department were detailed to establish the lack of clandestine removal. The judgment concluded that the impugned notice under sub-rule 2 of Rule 9 lacked jurisdiction as the goods were not clandestinely removed. It highlighted that the department's actions in dropping the case in 1977 due to non-excisability prevented them from claiming clandestine removal in 1980. The petitioner's actions post-1977 were deemed non-clandestine, and hence, the notices issued in 1980 and 1981 were deemed invalid. Lastly, the judgment addressed the argument of prematurity in filing the petition, emphasizing that challenging proceedings without jurisdiction is permissible under Article 226 of the Constitution. Consequently, the petition succeeded, and the show-cause notices issued in 1980 and 1981 were quashed, with no costs imposed.
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