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TMI Blog1937 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of excise duty. And if any excisable goods were removed, 'in contravention of sub-rule (1) then under sub-rule (2) of the Rule the producer or manufacture was liable to pay not only the duty leviable on it, but penalty as well and the goods were liable to confiscation. The expression, in contravention of was considered by the Hon'ble Supreme Court in N.B. Sanjana v. E.S. W Mills (1971 S.C. 2039) = 1978 E.L.T. (J 399). It was held, "To attract sub-rule (2) to Rule 9, the goods should have been removed in contravention of sub-rule (1). It is not the case of the appellants that the respondents have not complied with the provisions of sub-rule (1). We are of the opinion that in order to attract sub-rule 2. the goods should have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief that were not excisable or under intimation to department with their consent and approval, then such removal was beyond the penal pale of Rule 9(2). The essential element of intention to commit an offence leading to penalty and confiscation of goods is missing when the act or omission is done with knowledge of department. The express or implied consent removes venality of act. 4. The controversy, therefore, narrows down to if the petitioner can be held guilty of removal of goods intentionally without intimation to the department and that it was not liable to pay duty. Even though it was urged that fertilizer manufactured by petitioner was not an excisable good but it appears unnecessary to adjudicate upon it as the petition is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bags containing mixed fertilizer were seized. A second raid was made in Dune 1979. Thereafter letters from department and replies by petitioner went on. The former asking the petitioner to give details and the latter reiterating its earlier stand and claiming that its goods had been held to be non-excisable. Since the inquiry could not be completed the Collector Central Excise after issuing notice to petitioner and hearing extended the period by six months. But the order was set aside in appeal. 5. In May, 1984, however, the impugned notice under sub-rule 2 of Rule 9 was given to petitioner for manufacturing fertilizer an excisable commodity under Item 14 H H of Central Excise Tariff without obtaining licence and clearing the foods witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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