The main legal point established is that the alternative remedy of appeal should be availed of, and the challenge to the vires of Rule 17(2) of the Pan Masala Rules is without substance.

JUDGMENT :

Abhay Ahuja, J.

1. Heard. Since the two petitions involve similar facts and issues and the counsel in Writ Petition No.2540 of 2020 in the case of Amit Pramod Minache Vs. Union of India and Others has submitted that he will adopt the arguments of the counsel in Writ Petition No.2539 of 2020, we are disposing of both the petitions by this order. For the sake of convenience, we will advert to the facts in Writ Petition No. 2539 of 2020 in the case of Raju Laxman Pachhapure.

2. The Petitioner has filed this Petition under Article 226 of the Constitution of India, 1950 for the following reliefs:

(a) This Hon’ble Court be pleased to declare that the provisions of Rule 17(2) of the Pan Masala Packing Machines (Capacity, Determination and Collection of Duty) Rules, 2008 (the “Pan Masala Rules”) is ultra vires the provisions of Section 3A of the Central Excise Act, 1944 and is unconstitutional;

(b) This Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for calling for the records of the present case and after going through the legality and validity thereof be pleased to quash and set aside the impugned Order dated 21.08.2019 issued by the Respondent No.2.

(c) This Hon’ble Court be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or any other appropriate Writ, Order or direction under Article 226 of the Constitution of India restraining the Respondents themselves, their officers, subordinates, servants and agents from taking any further action or adopting any coercive measures to recover the duty, interest or penalty confirmed vide the impugned Order dated 21.08.2019 issued by the Respondent No.2.

(d) This Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for calling for the records of the present case and after going through the legality and validity thereof be pleased to quash and set aside the impugned Rejection Letter dated 15.07.2019 issued by the Respondent No.2;

(e) that pending the hearing and final disposal of this Petition, that this Hon’ble Court be pleased to

i. stay the operation of the Impugned Order dated 21.08.2019; and

ii. direct the Respondents by themselves, their officers, subordinates, servants and agents to refrain from taking any coercive steps to recover the amount of Excise Duty, interest or penalty confirmed under the impugned Order dated 21.08.2019;

(f) for ad-interim reliefs in terms of prayer clause (d) above;

(g) for costs of this Petition and the Orders made thereon, and

(h) for such further and other reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the case.

Facts -

3. Petitioner is engaged in the activity of cultivation of land in Ichalkaranji, Kolhapur and has been alleged to be the manufacturer of Aryan Gutka. Search and seizure action was conducted by the officers of the Food and Drugs Authority (FDA) under Food Safety and Standards Act, 2006 (the “Food Safety Act”) in unregistered gutka manufacturing factories in the area of Ichalkaranji, Kolhapur which included the premises of the Petitioner and raw material, processed gutka/supari, pouch, gunny bags, packing machines were recovered. Finished packed pouches of Aryan Gutka said to have been manufactured by the petitioner were recovered at the shop of Balaji Supari Centre. Panchanamas dated 15.9.2014, 16.9.2014, 19.8.2015 and 20.8.2015 were drawn up with respect to the recoveries thus made, which panchanamas along with other information were forwarded to the office of the 2nd respondent. The 2nd Respondent after carrying out investigation, recorded statements, obtained further necessary information and on conclusion of the investigation, issued a show cause notice dated 4.4.2018 (“SCN”) to the petitioners demanding the payment of excise duty from the petitioners, jointly and severally for the period February, 201