Judgment :- RAMANUJAM, J. The Petitioner has been manufacturing varnishes and paints. In respect of the said articles manufactured by him, a demand was issued for payment of Excise duty of Rs. 49, 249.20 for the period 1-1-1963 to 15-7-1964. That demand was challenged by the petitioner before the Assistant Collector of Central Excise, Madras, who by his order dated 30th January, 1968 directed the withdrawal of the demand forthwith on the ground that the petitioner who is manufacturing paints and varnishes is entitled to the concessional rates of assessment as per the Notification No. 137 of 1960 dated 1-10-1960 and that the demand having been issued without reference to the said notification cannot be sustained. 2.Thereafter, two fresh demands for payment of excise duty (1) for the period 1-4-1959 to 15-7-1964 and (2) for the latter period from 16-7-1967 to 31-3-1968 had been issued. The petitioner challenged those demands also before the respondent, the Collector of Central Excise. The respondent, however, did not accept the petitioner's contention as regards the accessibility of paints and varnishes to excise duty, but reduced the quantum of excise duty payable by him in respect of both the periods. The petitioner is aggrieved by the order passed by the Collector of Central Excise and has therefore, filed the above Writ Petition for quashing the two demands, as confirmed by the respondent in appeal. 3.The Learned Counsel for the petitioner contends at the first instance that the subsequent demands which are impugned in this writ petition are contrary to the decision rendered by the appellate authority, the Assistant Collector of Customs on 30th January, 1968 directing the withdrawal of the demands and that, therefore, the fresh demands cannot be sustained. But we are not inclined to accept this contention for the order of the Assistant Collector of Customs passed on 30th January, 1968 specifically states that the demand questioned before him was bad for the reason that it has not taken note of the concessional rates of assessment prescribed under the Notification No. 137 of 1960 dated 1-10-1960 and not on the ground that the petitioner is not liable to pay excise duty at all. In our view, therefore, the order of the Assistant Collector of Central Excise dated 30th January, 1968 withdrawing the demand for the period 1-1-1963 to 15-7-1964 would not stand in the way of the Department issuing fresh demands in accordance with the statutory provisions as well as the statutory Notifications issued by the Central Government. 4.The Learned Counsel for the petitioner then contends that the two demands impugned in this Writ Petition cannot be sustained either under Rule 9(2) or under Rule 10-A. According to the Learned Counsel, in respect of both the periods, there has been no direction by the Collector of Central Excise requiring the excise duty to be paid at any particular place or in any particular manner. It is not in dispute that the goods manufactured by the petitioner at Madras have not been subjected to excise duty at any stage prior to the issue of those demands. 5.In W.P. Nos. 265 and 266 of 1967, while dealing with the scope of Rule 9(2) we expressed the view that Rule 9(2) is a penal provision that cannot be invoked in a case wherein the Central Excise authorities entertained a doubt as to whether the goods are excisable or not and did not object to the clearance of the goods without payment of duty and that the mere non-levy at the time of the clearance will not attract that Rule. As pointed out in that decision, to attract Rule 9(2), the goods should have been removed in contravention of sub-rule (1) and Rule 9(1) read with Rules, 47, 52 and 52(a) set down an elaborate procedure as to how the duty has to be paid at the time of clearance of the goods from the premises of the factory. When the authorities have not fixed the time, place and the manner of payment of excise duty as contemplated by Rule 9(1), there cannot be any contravention of that Rule. Therefore, it has to be held that the demand issued under Rule 9(2) on 25-10-1968 for the period 1-4-1959 to 15-7-1964 cannot be sustained under Rule 9(2). The demand for the latter period i.e. for the period from 16-7-1967 to 31-3-1968 is based on Rule 10A. But in the circumstances of this case, it is not possible to uphold the demand under Rule 10-A. Rule 10-A has been held to be bad by this Court in W.P. Nos. The demand for the latter period i.e. for the period from 16-7-1967 to 31-3-1968 is based on Rule 10A. But in the circumstances of this case, it is not possible to uphold the demand under Rule 10-A. Rule 10-A has been held to be bad by this Court in W.P. Nos. 265 and 266 of 1967 - Murugan & Co., a firm by its Partners S. P. Thiruvadi and Another v. The Deputy Collector of Central Excise and 2 Others [1977 (1) E.L.T. (J 193) (Mad.)] (W.P. No. 265 of 1967), S.P. Thiruvadi & Co., by its Partners S.P. Thiruvadi and S. Andappa Pilial v. The Inspector of Central Excise, Cuddalore Range and Another (W.P. No. 266 of 1967) on the principle of the decision rendered by this Court in W.P. No. 1053 of 1963 - (The Citadel Fine Pharmaceuticals Madras v. The District Revenue Officer, Chingleput, Madras and 2 Others). As already stated, this demand, if it fails as a demand under Rule 10-A cannot be sustained as a demand under Rule 9(2) as urged by the Learned Counsel for the Department for the reason set out above. In this view, both the demands have to be set aside.6.The Writ Petition is allowed and the Rule Nisi is made absolute. There will be no order as to costs.