( 1 ) SHOW-CAUSE notice issued by the Assistant Collector of Central Excise for contravention of rules 9, 173 B, C, F, G, Q, 174 and 198 of Central Excise Rules for manufacture and clearance of fertilizer without paying excise duty has been challenged as without jurisdiction. ( 2 ) RULE 9 (1) as it stood in 1979 prohibited removal of goods from any place where they were produced, cured or manufactured whether for consumption, export or manufacture without payment of excise duty. And if any excisable goods were removed, in contravention of Sub-rule (1) then under Sub-rule (2) of the Rule the producer or manufacture was liable to pay not only the duty leviable on it, but penalty as well and the goods were liable to confiscation. The expression, in contravention of was considered by the Honble Supreme Court in N. B. Sanjana v. E. S. and W Mills (1971 S. C. 2039 ). It was held, "to attract Sub-rule (2) to Rule 9, the goods should have been removed in contravention of sub-rule (1 ). It is not the case of the appellants that the respondents have not complied with the provisions of Sub-rule (1 ). We are of the opinion that in order to attract Sub-rule 2, the goods should have been removed clandestinely and without assessment. " ( 3 ) IN Murugen and Co. Pundukoila v. Deputy Collector of Central Excise Tiruchirapalli and anr. 1977 E. L. T. (J 193) the Madras High Court applied the decision in Sanjana case and held that where goods were produced by a manufacturer under bona fide impression that they were not excisable and they were claimed without any objection by the department the clearance could not be held to be clandestine removal so as to attract Rule 9 (2 ). In Star Paper Mills Ltd. v. Union of India 1981 E. L. T. (Del.) the Delhi High Court extended the description laid down in Sanjana case where the description of paper was mentioned as writing paper even though it was used for packing because authorities were all along aware that packing and wrapping paper was used in the packing of the reams. The Government of India itself held in a decision in re : Dabour Pvt. Ltd. Calcutta - 1980 E. L. T. 117 (G. O. I.) that even though clearance of P or P medicines a non excisable pharmacopical preparation became excisable when it carried the inscription, "dabur" the name of manufacturer the removal could not be held to be clandestine so as to attract Rule 9 (2) as the label had been approved earlier by the department and held not liable to any duty. It is thus settled that Sub-rule (2) of Rule 9 applied to those cases only where the manufacturer was guilty of removal of excisable goods without payment of duty. But if the goods were removed either under bona fide belief that were not excisable or under intimation to department with their consent and approval, then such removal was beyond the penal pale of Rule 9 (2 ). The essential element of intention to commit an offence leading to penalty and confiscation of goods is missing when the act or omission is done with knowledge of department. The express or implied consent removes venality of act. ( 4 ) THE controversy, therefore, narrows down to if the petitioner can be held guilty of removal of goods intentionally without intimation to the department and that it was not liable to pay duty. Even though it was urged that fertilizer manufactured by petitioner was not an excisable good but it appears unnecessary to adjudicate upon it as the petition is liable to succeed on non-applicability of Sub-rule (2) of Rule 9. The petitioner started manufacture of fertilizer in 1974. It used nitrogen phosphate, potash the base fertilizer and rock phosphate in its pristine run of mine from along with gypsum and dolomite as fillers. In February 1974 Inspector (Preventive)of Central Excise department booked an offence against petitioner on 8th February 1974 for non compliance with a provisions of Act and rules and for non-payment of excise duty. In March 1977 as a sequel to booking of offence the petitioner received a letter from Superintendent central Excise making inquiries from petitioner about the form in which rock phosphate was received and whether duty was paid on its disposal. The letter was replied in same month explaining the process of manufacture and claiming that mixing done by petitioner did not amount to manufacture under Section 2 of the Act. The letter was replied in same month explaining the process of manufacture and claiming that mixing done by petitioner did not amount to manufacture under Section 2 of the Act. On 23rd 3une 1977 the proceeding in pursuance of booking of offence on 8th February 1974 were dropped. It was held, "i have gone through the case papers. In view of the Superintendent Central Excise M. O. R. II muzaffarnagars report that the factory is manufacturing mixed fertilizer, exempt from the levy of duty and exempt from the licensing control under Rule 174a the case against the party is not substantiable. I, therefore, drop the case proceedings. " on 31st May 1979 fresh notices were issued making similar inquiries. The petitioners premises were raided also on same day and the bags containing mixed fertilizer were seized. A second raid was made in 3une 1979. Thereafter letters from department and replies by petitioner went on. The former asking the petitioner to give details and the latter reiterating its earlier stand and claiming that its goods had been held to be non-excisable. Since the inquiry could not be completed the Collector Central Excise after issuing notice to petitioner and hearing extended the period by six months. But the order was set aside in appeal. ( 5 ) IN May, 1984, however, the impugned notice under Sub-rule 2 of Rule 9 was given to petitioner for manufacturing fertilizer an excisable commodity under item 14 H H of Central excise Tariff without obtaining licence and clearing the foods without payment of duty, for the period 1973-74 to 1979-80. Another opportunity to file its defence was extended by letter dated 14th October 1981. On the law explained earlier it is apparent that no proceedings could be taken against petitioner as the removal of goods could not be held to be clandestine. The department having initiated proceedings in February 1974 and then dropped it in 1977 because the goods were not excisable could not turn round in 1980, and claim that the removal of goods was clandestine. As regards after 3une 1977 the department could take proceedings in accordance with law but they could not take recourse to Sub-rule (2) of Rule 9. The remedy is available as held by courts in very limited cases. As regards after 3une 1977 the department could take proceedings in accordance with law but they could not take recourse to Sub-rule (2) of Rule 9. The remedy is available as held by courts in very limited cases. Since petitioner removed goods after 1977 without obtaining licence in consequence of the order passed that the goods were not excisable, the removal of goods was not clandestine, therefore, no proceedings could be taken under aforesaid rule. The notice issued, therefore, on 24th May, 1980 and 14th October, 1981 were bad for lack of jurisdiction. ( 6 ) IT was urged by learned Standing Counsel that petition is premature, as petitioner could have agitated this before excise authorities. The submission appears to be devoid of any substance. It is well settled from various decisions of the Supreme Court that in case proceedings of admitted facts are without jurisdiction, then there is no bar in entertaining petition under Article 226 of constitution. ( 7 ) IN the result this petition succeeds and is allowed. Show-cause notice issued oh 24th May, 1980 and 14th October, 1981 are quashed. There shall be no order as to costs. .