Judgment :- This is a petition praying for the issue of a writ of prohibition to prohibit the Assistant Collector of Central Excise, Tiruchirapalli from taking further proceedings in pursuance of his notice dated 19-4-1961 issued in the following circumstances. The petitioner is a general merchant in Pudukottai. He is not a manufacturer or a producer of any excisable commodity. On the 13th of December 1959 he placed an order for 50 tins of groundnut oil with a mill. This oil was transported to his premises by a cartman. When the goods arrived at the shop, they were checked by the Inspector of Central Excise and the gate pass for the consignment was demanded. The gate pass was not forthcoming. Accordingly, the Inspector seized the goods and obtained a statement from the petitioner. The petitioner was directed to deposit a sum of Rs. 300 for release of the tins. The petitioner remitted the amount to the Sub-treasury on the following day. On being shown the money order receipt, the department released the tins. About a week later, the petitioner was asked to execute a security bond and he complied with the direction. Subsequently, a show cause notice was issued to the petitioner stating that he had contravened Rule 52-A (2) of the Central Excise Rules and directing him to show cause why penalty should not be imposed and confiscation of the goods ordered. The petitioner submitted his reply. Later, the Inspector of Central Excise called upon the petitioner to produce the tins of groundnut oil seized. On his expressing his inability to do so, the department directed the petitioner to deposit the sum of Rs. 300 being the bond amount. It is this order that is challenged by the petitioner in this writ petition. 2.It is claimed by the petitioner that when it is admitted that he is not a manufacturer or a producer, he is under no liability. Even apart from that, it is contended that the departmental officers had called upon him to deposit a sum of Rs. 300 to enable them to release the goods in question. 2.It is claimed by the petitioner that when it is admitted that he is not a manufacturer or a producer, he is under no liability. Even apart from that, it is contended that the departmental officers had called upon him to deposit a sum of Rs. 300 to enable them to release the goods in question. When he had complied with the order, the further execution of the security bond was wholly uncalled for and though in fact it was executed the contention is that that bond is of no avail and cannot confer any rights upon the department to call upon the petitioner to deposit the amount in question. According to the counter affidavit filed on behalf of the Assistant Collector of Excise, the facts stated are not disputed. It is claimed that on enquiry at the mills, the mills repudiated the alleged transaction and it was therefore necessary to seize the goods in order that further proceedings under the Central Excise and Salt Act, 1944, could be proceeded with. On the request of the petitioner to release the goods, he was asked to deposit a sum to cover "the approximate duty and any other sums due to the Govt". It is stated that the petitioner also gave an oral assurance that he could execute a bond in form B-11, which is the usual form to be executed in such cases under Rule 206 of the Central Excise Rules. The bond was in fact executed by the petitioner on 21-12-1959. After the issue of show cause notice and considering the reply thereto, the respondent decided to enforce the bond, as the goods were not produced in conformity with the conditions stipulated in the bond. It is also claimed in the counter affidavit that the bond is valid and enforceable and the respondent has a right to recover the amount. The contention that the bond serves no lawful purpose is denied. 3.In the reply affidavit filed by the petitioner it is stated that in so far as the mill is concerned, which is said to be the supplier of the goods, the department has registered no case against that mill, though the payment of excise duty is the responsibility of the producer. No Notice of demand in respect of these goods has been served upon the mill. No Notice of demand in respect of these goods has been served upon the mill. It is claimed that instead of proceeding against the Mill, which is the proper person to be proceeded against the department is taking unlawful action against the petitioner. 4.At the outset I may state that whatever proceedings have been initiated against the petitioner have not been completed. So far as there is no decision whether the petitioner is also a person responsible for the payment of duty or whether any penalty under the relevant rule can be imposed upon him for failure to be armed with a gate pass. The petitioner's liability and also the liability of the goods for confiscation have not been determined. That is conceded by the learned Additional Govt. Pleader. On l4th December, 1959 the petitioner was directed to deposit the sum of Rs. 300/- towards "the duty and any other claims" which the Government may have, presumably by way of penalty. If the goods could not be released by the department without the execution of the security bond, it is somewhat surprising that the Assistant Collector of Central Excise, parted with the goods without such a bond being executed. It is true that a bond was executed apparently to secure possession of the goods in the event of confiscation being ordered. In lieu of confiscation however department seems to have proceeded on the basis that a sum of Rs. 300 would be the equivalent value of the goods. Taking into consideration the fact that a sum of Rs. 300 had been deposited and the goods had been released and the bond was intended only for the purpose of securing possession of goods, in the event of confiscation being ordered, I see no justification for the department demanding the deposit of the sum of money even before any order of confiscation has been made. 300 had been deposited and the goods had been released and the bond was intended only for the purpose of securing possession of goods, in the event of confiscation being ordered, I see no justification for the department demanding the deposit of the sum of money even before any order of confiscation has been made. If the bond can be enforced, it is available for the purpose at any time in the records I find that even on the l4th, the petitioner has given an undertaking, which is to the effect that the goods were being released to him on his depositing the sum stated and on his further undertaking "that in the event of the amount of duty, penalty and fine in lieu of confiscation ultimately imposed by the adjudicating authority being an excess of the duty and the deposit already collected from me, I will pay the difference on demand." * Virtually this undertaking covers the requirements of form B-11. Though this undertaking is not one to return the goods in specific the petitioner has undertaken to pay the difference of fine if such a fine ultimately imposed by the adjudicating authority was in excess of the sums already collected from him. By reason of this undertaking the petitioner would be entitled to possession of the goods till an order adverse to him is passed. What all the department can demand from the petitioner is only the payment of the fine in lieu of confiscation. I cannot understand how when this specific undertaking has already been recorded, the department can now demand that the goods should be returned to the department or their value estimated at Rs. 300 should be deposited.5.The goods were released on a proper undertaking and it is not open to the department to make a demand of this description pending final order upon the matter. In this view, a writ of prohibition will issue. It will be open to the department to enforce either the undertaking or the security bond whichever is available for their purpose in due course. There will be no order as to costs.