Excise demand sustained despite wrong rule citation where dutiable goods were removed unpaid and no prejudice was shown.

An excise demand is not invalid merely because it was first issued under an incorrect rule if the goods were admittedly dutiable and duty was unpaid on removal, since the demand can be sustained under the correct provision. The absence of a separate adjudication under Rule 9(1) does not vitiate the demand where Rule 9(2) applies directly on the admitted facts. Procedural objections based on alleged lack of opportunity fail where the figures are taken from the assessee's own books and no prejudice is shown. A challenge to the Inspector's competence was also not accepted on these facts, leaving the demand and connected orders undisturbed.

---

---

Issues: (i) Whether the excise demand was without jurisdiction merely because it had initially been issued under the wrong rule and later sustained under Rule 9(2) of the Central Excise Rules, 1944; (ii) Whether absence of a separate adjudication under Rule 9(1) vitiated the demand; (iii) Whether want of opportunity caused prejudice to the petitioner; (iv) Whether the Inspector was incompetent to make the demand.

Issue (i): Whether the excise demand was without jurisdiction merely because it had initially been issued under the wrong rule and later sustained under Rule 9(2) of the Central Excise Rules, 1944.

Analysis: The demand had been made with reference to Rule 10A, which was found inapplicable, and Rule 10 was also not applicable. However, the goods were admittedly dutiable and duty had not been paid on removal. The defect in citing the wrong rule did not by itself take away the authority's jurisdiction, since the substance of the liability remained the same and the demand could be sustained under the correct provision.

Conclusion: The demand was not invalid merely because it was initially issued under the wrong rule; sustaining it under Rule 9(2) was permissible.

Issue (ii): Whether absence of a separate adjudication under Rule 9(1) vitiated the demand.

Analysis: The liability arose from removal of admittedly dutiable goods without payment of duty. On those facts, Rule 9(2) applied directly, and the absence of a separate adjudication under Rule 9(1) did not undermine the demand.

Conclusion: The absence of an adjudication under Rule 9(1) did not vitiate the demand.

Issue (iii): Whether want of opportunity caused prejudice to the petitioner.

Analysis: The total quantity of aluminium manufactured had been worked out from the petitioner's own books. Since the relevant figures were taken from its records, no prejudice was shown from any alleged lack of opportunity.

Conclusion: No prejudice was caused by the alleged want of opportunity.

Issue (iv): Whether the Inspector was incompetent to make the demand.

Analysis: In the circumstances, the challenge to the Inspector's competence was not accepted, as the demand was otherwise supportable on the admitted facts and the objection did not disclose a fatal defect.

Conclusion: The Inspector was not held incompetent to make the demand.

Final Conclusion: The challenge to the excise demand failed on all substantial grounds, and the impugned demand and connected orders were left undisturbed.

Ratio Decidendi: A demand for duty is not invalid merely because it is issued under an incorrect rule if the underlying liability is otherwise clearly attracted and the correct provision supports the demand; absence of prejudice defeats procedural objections.

---