D.C.Chakravorti, M.M.Dutta, J. - (1.) This appeal has been preferred by the Central Excise Authorities and the Union of India against the judgment of P.K. Banerjee J. whereby his Lordship made the Rule Nisi obtained by the respondent on its application under Article 226 of the Constitution absolute.
(2.) The respondent the Bengal Paper Mill Co. Ltd. is a manufacturer and dealer of paper and board of various types and qualities and owns and runs a paper Mill at Ranigunj, in the district of Burdwan. During the period from March 1,1963 to 31, 1963 the respondent removed from its factory 21,599.1 Kgs. paper alleged to be "5% Rag D. S. Azure Laid Gateway 51/78. 5-22.7 Kg ", after making applications in the A.R. 1 forms and paying excise duty under item 17 (3) of the First Schedule to the Central Excises and Salt Act, 1944, hereinafter referred to as the Act. On May 29, 1963, a sample of the said quantity of paper removed by the respondent from its factory was drawn by the Central Excise Authorities for the purpose of chemical test. The Assistant Collector of Central Excise, Asansol Division, by his letter dated August 6, 1963, informed the respondent that the said sample was found to be Bond paper without any water-mark and, as such, was assessable under item 17 (2) of the First Schedule to the Act. The respondent preferred an appeal against the finding as contained in the said letter of the Collector of Central Excise. The appeal was dismissed. Thereafter, the respondent preferred a revisional application to the Central Government which has since been dismissed. During the pendency of the said revision case before the Central Government, the respondent received a notice of demand under Rule, 10A of the Central Excise Rules, 1944, hereafter referred to as the Rules. In the said notice of demand, it was inter alia alleged that as the said quantity of paper removed by the respondent from its factory during the above period was found on a chemical retest to be Bond paper, the respondent was liable to pay excise duty under item 17 (2) of the First Schedule to the Act at the rate of 50 paise per Kg. and 20% special excise duty and, as such there was a short levy of duty during the period in question. Accordingly, by the said notice of demand, the differential duty at the rate of 28 paise per Kg and 20% special excise duty on the said quantity of goods removed by the respondent during the said period was demanded under Rule 10A of the Rules. The respondent moved a writ petition against the said notice of demand and obtained the Rule Nisi out of which this appeal arises. The learned Judge came to the finding that Rule 10 and not Rule 10A applied to the facts and circumstances of the case and as the demand was made beyond the period of limitation as prescribed by Rule 10, it was barred. Upon the said finding, the learned Judge quashed the notice of demand and made the Rule absolute. Hence this appeal.
(3.) At the outset, Mr. Samarendra Nath Banerjee, learned Advocate appearing on behalf of the appellants has taken a preliminary objection as to the maintainability of the writ petition. It is contended by him that as an appeal lay against the said notice of demand under Section 35 of the Act, the writ petition was not maintainable in view of Clause (3) of Article 226 of the Constitution as amended by the Constitution (Forty-second Amendment) Act, 1976. Under Clause (3), no petition for the redress of any injury referred to in Sub-Clause (b) or Sub-Clause (c) of Clause (i) shall be entertained if any other remedy for such redress is provided for by or under any other law for time being in force. Clause (3), therefore, expressly excludes Sub-Clause (a) from the restriction contained in it. Sub-Clause (a) of Clause (1) of Article 226 provides for the enforcement of any of the rights conferred by the provisions of Part III of the Constitution. It thus follows that an alternative remedy will not be a bar when the right to be enforced is one of the rights conferred by the provisions of Part III. Clause (i) of Article 31 of the Constitution provides that no person shall be deprived of his property save by authority of law. Article 31 is included in Part III of the Constitution and it is not disputed before us that by challenging the impugned notice of demand, the respondent has sought to enforce its right to property within the meaning of Clause (i) of Article 31. It is, however, contended on behalf of the appellants that as the demand was made under the authority of law, it is not correct to say that the respondent was I sought to be deprived of its property without such authority. In support of this contention, it is argued that the appellants were entitled to claim excise duty under the provision of Rule 9(2) of the Rules. We are, however, unable to accept this contention. The impugned notice of demand has been issued by the appellants under Rule 10A and not under Rule 9(2). Moreover, Rule 9(2) relates to removal of excisable goods without any assessment and payment of excise duty in contravention of Sub-Rule (1). In N.B. Sanjana v. The Elphinstone Spinning and Weaving Mills Co. Ltd. [1978 ELT (J 399)], it has been laid down by the Supreme Court that in order to attract Sub-Rule (2), the goods should have been removed clandestinely and without assessment. It is however, not the case of the appellants that the goods have been removed clandestinely or without any assessment. Rule 9(2) has, therefore, no manner of application.;