- (1.) THE reliefs which have been sought in these proceedings under article 226 of the Constitution are in the following terms: "(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned notice issued by respondent No. 2, dated September 4, 2014 (annexure 1 to this writ petition). (b) Issue a writ, order or direction in the nature of mandamus commanding respondent No. 2 not to proceed further in pursuance of show -cause notice dated September 4, 2014 (annexure 1 to this writ petition). (c) Issue a writ, order or direction in the nature of mandamus declaring the proviso of section 3A(2) and (3) of the Central Excise Act as ultra vires to the Constitution of India. (d) Issue a writ, order or direction in the nature of mandamus declaring the proviso 7 of rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, and proviso 7 of rule 9 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 as ultra vires to the Constitution of India." The primary relief as set out in the prayer clause (a) is to challenge the validity of a notice to show cause that has been issued by the Commissioner, Central Excise, Kanpur on September 4, 2014. The notice to show cause requires the petitioner to explain why a duty of an amount of Rs. 55.39 crores should not be demanded and recovered under section 11A(4)(e) of the Central Excise Act, 1944 the Act read with rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 the Rules, 2008 read with a relevant notification and the Chewing Tobacco and Unmanufactured Tobacco (Capacity Determination and Collection of Duty) Rules, 2010 the Rules, 2010 together with the relevant notifications, for the months of September to December, 2013 and January and April to June, 2014 together with interest and penalty.
(2.) THE petitioner has sought to also question the constitutional validity of the provisions of section 3A(2) and (3) of the Act and of the provisions of proviso 7 to rule 9 of the Rules, 2008 and the Rules, 2010.
(3.) WE are not inclined to entertain the petition at the present stage pending adjudication of the show -cause notice by the Commissioner of Central Excise. Undoubtedly, as has been held in the judgment of the Supreme Court in Alpha Chem v. State of U.P. [1993] 89 STC 304 (SC): 1991] UPTC 430, upon which reliance has been placed by the learned senior counsel appearing on behalf of the petitioner, the adjudicating authority cannot determine the constitutional validity of a statutory provision. For, the power of judicial review is vested in this court under article 226 of the Constitution. The issue, however, is whether such a challenge should be decided in the abstract pending the adjudication proceedings. We are of the view that having due regard to the provisions of the fiscal legislation in question, namely, the Central Excise Act, 1944, it would be appropriate and proper if a primary determination of fact and law is made by the adjudicating authority. A constitutional challenge, it is well settled, should not be considered in a vacuum. Hence, while we keep the issue of constitutional validity open to be urged at the appropriate stage, we decline to entertain the petition only on this ground leaving it open to the petitioner to pursue all available defences in the adjudication proceedings. However, for the sake of clarity, we once again reiterate that the issue of constitutionality is kept open to be decided in an appropriate proceeding at the appropriate stage. The petition is, accordingly, dismissed. There shall be no order as to costs.;