P. R. GOKULAKRISHNAN, J. ( 1 ) THIS Special Civil Application questions the order passed by the Collector of Central Excise on the basis of the show cause notice issued on 22-4-1985. The said show cause notice was issued by the Department of Customs Collectorate alleging:why the duty of excise at the appropriate leviable rate totally amounting to Rs 34 92 559 (Rs. 33 26 247 Basic excise duty+ Rs 1 66 312 Special excise duty) should not be recovered from them on Glucose in liquid form falling under Tariff Item le valued at Rs. 2 21 74 981 illicitly manufactured and removed by them during the financial years 1982-83 to 1984-85 (Upto February 1985) or thereabout as mentioned in para 8 above under the proviso to sub-sec. (1) of sec. 11a of the Central Excises and Salt Act 1944 read with Rule 9 (2) of the Central Excise Rules 1944 (II) Why penalty should not be imposed on them under sub-rule (1) of Rule 173 Q of the Central Excise Rules 1944 (III) Why plant and machineries etc. valued at Rs. 35 47 400 said to be belonging to them and used in connection with manufacture production storage removal etc. of Glucose in liquid form mentioned at Sr. No. (1) above in respect of which prohibitory order has been issued by the Superintendent Customs and Central Excise (Preventive) Head-quarters Office Baroda under letter No. IV/6-Prev/gr. IV/15-85 dated 20-4-85 should not be confiscated under Rule 173-Q (2) of the Central Excise Rules 1944 in the light of the provisions of clause (a) thereto. ( 2 ) IT is stated in the show cause notice that the same is issued under the provisions of sub-sc-c. (1) of sec. 11a of the Central Excises and Salt Act 1944 read with Rule 9 (2) of the Central Excise Rules 1944 It is also stated that the penalty is claimed through the notice under sub-rule (1) of Rule 173 Q of the Central Excise Rules 1944 The notice further states that the confiscation of the plant and machineries is mentioned under the powers vested with the authorities concerned as per Rule 173 Q (2) of the Central Excise Rules 1944 ( 3 ) QUESTIONING this show cause notice the petitioner came before this Court by way of Special Civil Application No. 2974 of 1985. This Court by its order dated 17-6-1985 directed the petitioner to go before the Collector of Central Excise and put forth all the arguments that they want to advance regarding the issuance of show cause notice instead to coming to the High Court with a writ petition under Article 226 of the Constitution at the stage of show cause notice. Accordingly the petitioner went before the Collector of Central Excise and the Collector of the Central Excise has now passed the order which is being impugned in this Special Civil Application. ( 4 ) THE short facts of this case for the purpose of disposal of this case at admission stage are that the petitioner according to them manufacture the goods called Sorbitol which is an exciseable commodity. According to them it falls under Tariff Item No. 68. The process of manufacturing the same is that by hydrolising the starch the Sorbitol is obtained. In the process of hydrolising the starch various materials are produced according to the time taken for such hydrolising. The materials are sucrose fructose glucose liquid glucose sorbitol etc. It is also made clear by the petitioner that these materials will not automatically be produced when the starch is hydrolised but after certain stage various other processes are necessary for the purpose of producing these materials. The glucose that comes out of it is exciseable and under the Tariff Item 1-E; glucose desctrose and preparations thereof according to the respondent herein. 4atwo contentions were raised before the Collector of Central Excise stating that at relevant time the Collector did not have the power to take action under sec. 11a and as such the impugned order issued is non est. The 2nd contention put forth is that the so-called product hydrolised starch is not goods within the meaning of the Act since it is not marketable and since it is only an intermediate article hence not liable for duty. The Collector of Central Excise negatived both these contentions with a reasoned order. It is as against this the present Special Civil Application has been filed. ( 5 ) MR. Nanvati the learned Counsel appearing for the petitioner submitted that even though they have filed an appeal against the order now impugned in this writ petition before the Tribunal the petitioner has come forward with this Special Civil Application since it involves jurisdictional question. ( 6 ) MR. ( 5 ) MR. Nanvati the learned Counsel appearing for the petitioner submitted that even though they have filed an appeal against the order now impugned in this writ petition before the Tribunal the petitioner has come forward with this Special Civil Application since it involves jurisdictional question. ( 6 ) MR. Nanavati the learned Counsel for the petitioner states that even though the show cause notice can be issued by a proper officer the adjudication can be made as the law stood then only by the Assistant Collector of Central Excise. Since in this case the Collector has made adjudication learned Counsel for the petitioner submits that the order is non est and as such this Court has to quash the order passed subsequently by the Collector concerned. As far as the sec. 11a is concerned it has been amended subsequently by inserting the word Collector of Central Excise in addition to Assistant Collector Central Excise as it stood originally. Even if the matter is remanded now the notice and the adjudication can be made by the Collector as at present but as it is it is the submission of Mr. Nanavati that since the impugned order is passed prior to the amendment the adjudication effected by the Collector is not maintainable. Sec. 11a reads as follows as it originally stood:11 Recovery of duties not levied or not paid or short levied or short paid or erroneously refunded: (a) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded a Central Excise Officer may within 6 months from the relevant date serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made requiring him to show cause why he should not pay the amount specified in the notice. Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud collusion or any wilful mis-statement or suppression of fact or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty by such person or his agent the provisions of this sub-section shall have effect as if for the words six months the words five years were substituted. EXPLANATION :- Where the service of the notice is stayed by an order of a Court the period of such stay shall be excluded in computing the aforesaid period of six months or five years as the case may be. (2) The Assistant Collector of Central Excise shall after considering the representation if any made by the person on whom notice is served under sub- sec. (1) determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. ( 7 ) THE show cause notice not only mentions sec. 11a but also rule 9 (2) Rule 9 (2) read as under:if any exciseable goods are in contravention of sub-rule (1) deposited in or removed from any place specified therein the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand made (within the period specified in see. 11a of the Act) by the proper officer whether such demand is delivered personally to him or is left at his dwelling house and shall also be liable to a penalty which may extend to two thousand rupees and (such good) shall be liable to confiscation. ( 8 ) THE contention of Mr. Nanavati is that inasmuch as the notice mentions the substantial provision under sec. 11a adjudication has to be made only by the Assistant Collector of Central Excise and any adjudication made by the Collector cannot be sustained. When such is a clear position of law the learned Counsel states the question of jurisdiction arises in this case and as such the petitioner is entitled to invoke the jurisdiction of this Court by a writ petition under Art. 226 of the Constitution. ( 9 ) THE next contention of Mr. When such is a clear position of law the learned Counsel states the question of jurisdiction arises in this case and as such the petitioner is entitled to invoke the jurisdiction of this Court by a writ petition under Art. 226 of the Constitution. ( 9 ) THE next contention of Mr. Nanavati is that the petitioner cannot get effective redressal before the Tribunal since the petitioner has to deposit the duty and the penalty demanded before the petitioner argues the case before the Tribunal concerned. For this purpose he reads sec. 35f of the Central Excises and Act and the same reads as under:35 Deposit pending appeal of duty demanded or penalty levied : Where in any appeal under this Chapter the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act the person desirous of appealing against such decision or order shall pending the appeal deposit with the adjudicating authority the duty demanded or the penalty levied; Provided that where in any particular case the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person the Collector (Appeals) or as the case may be the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. ( 10 ) ACCORDING to the learned Counsel the Tribunal will only consider the financial incapacity to pay and if that be so there will be difficulty for the petitioner in putting forth the case before the Tribunal without depositing the duty and the penalty concerned. For this purpose he cites a decision reported in AIR 1954 SC 403 . ( 10 ) ACCORDING to the learned Counsel the Tribunal will only consider the financial incapacity to pay and if that be so there will be difficulty for the petitioner in putting forth the case before the Tribunal without depositing the duty and the penalty concerned. For this purpose he cites a decision reported in AIR 1954 SC 403 . In this case the Supreme Court has observed as under:the contention that because a remedy under the impugned Act is available to the assessee he is disentitled to relief under Art. 226 stands negatived by the decision in AIR 1953 SC 252 of this Court in the State of Bombay v. The United Motors (India) Ltd. The principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Art. 226. Moreover since the remedy provided by the C. P. and Berar Sales Tax Act is of an onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of the tax such a provision can hardly be described as an adequate alternative remedy. ( 11 ) WE cannot take this decision as an authority for the proposition put forth by Mr. Nanavati. This decision was rendered in 1953 when at that time the Constitution considered the right to property as one of the fundamental rights. Moreover in that case there was absolutely no option left to the authority concerned to entertain the appeal without money being deposited. As far as the present case is concerned sec. 35f clearly gives power to the Tribunal to dispense with such deposit in a given circumstance. Hence we are afraid that we cannot accept the contention put forth by Mr. Nanavati. ( 12 ) MR. Qureshi on notice appears for the respondents and submits that the show cause notice is primarily issued on the strength of Rule 9 of the Central Excise Rules read with sec 11a. According to the learned Counsel for the respondents this is a case where the party concerned has clandestinely removed the exciseable goods and such the correct provision to be applied is Rule 9. According to the learned Counsel for the respondents this is a case where the party concerned has clandestinely removed the exciseable goods and such the correct provision to be applied is Rule 9. If that be so the proper authority is the Collector for the purpose of adjudicating such violation of the provisions of Central Excise Rules. According to Mr. Qureshi all these questions can be agitated before the Tribunal and a decision can be got through proper authorities constituted for this purpose. ( 13 ) MR. Qureshi also cited the decision reported in AIR 1971 SC 2039 wherein it is stated that to attract sub-rule 9 (2) the goods should have been removed clandestinely and without assessment. According to Mr. Qureshi the petitioner has come under the mischief of this Rule 9 since they have clandestinely removed the exciseable goods. ( 14 ) MR. Qureshi also cited the decision of the Supreme Court reported in AIR 1983 SC 603 for the proposition that when the Act provides for a complete machinery to challenge the order of assessment the impugned order of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Art. 226. It is incumbent upon the party concerned to go as provided by the Act through the gamut of the authorities constituted under the Act and should not come by way of a writ petition under Art. 226. It has been made clear in the Supreme Court decision that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of. ( 15 ) WE have considered all these aspects in detail. This is a case where there is allegation to the effect that the goods have been clandestinely removed by the petitioner and those goods are exciseable goods. It is not so simple as put forth by Mr. Nanavati that the Collector has no jurisdiction at all to adjudicate the matter. This is a case where there is allegation to the effect that the goods have been clandestinely removed by the petitioner and those goods are exciseable goods. It is not so simple as put forth by Mr. Nanavati that the Collector has no jurisdiction at all to adjudicate the matter. This is a matter which can be very well agitated before the authority constituted for this purpose and when the hierarchy of authorities is provided for the purpose of deciding this type of dispute we are afraid we cannot entertain petition under Art. 226 which will circumvent the usual procedure set up by legislature for the purpose of deciding such disputes. We are of the view that there is efficient and efficacious remedy before the Tribunal concerned and as a matter of fact the petitioner has also availed of that opportunity by preferring appeal before the Tribunal concerned It is an admitted fact that such an appeal is pending before the Tribunal as on date. Considering all these aspects of the case we are of the view that since an effective alternative remedy has been provided and is availed of this petition under Art. 226 cannot be entertained ( 16 ) FOR all these reasons this Special Civil Application is dismissed. Notice discharged. ( 17 ) MR. Nanavati learned Counsel for the petitioner prays that sufficient time be given to the petitioner for approaching the Tribunal for the purpose of getting necessary stay as provided under sec. 35f of the Central Excises and Salt Act 1944 raking into consideration this representation interim relief granted earlier is continued for a period of four weeks from this date. We hope that the Tribunal will dispose of the application if any filed under sec. 35f of the Central Excises and Salt Act 1944 within four weeks from this date. Petition dismissed; Rule discharged. .