BOSE AND COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) The present Rule was issued on 10th of December, 1979 at the instance of the writ petitioners praying, inter alia, for issuance of a writ of Mandamus challenging the Notification No. 176/77, dated 18-6-1977 and the Notification No. 89/79, dated 1-3-1979, being annexures 'S' to the writ application as ultra vires and also challenging the notice to sho cause dated 18-10-1979 issued by the Assistant Collector of Central Excise, Calcutta-VI Division copy of which is annexure 'N' to the writ petition on the ground that the entire proceedings initiated by the respondents are arbitrary, illegal and inoperative inasmuch as the search and seizure was without jurisdiction for the reason that the condition precedent to the exercise under Rule 201 of the Rules was not satisfied and that the Assistant Collector of Central Excise had no reason to believe on the basis of which he could make such search or authorise any officer to take effective step for searching. It is also alleged that there is job work undertaken by the petitioner and nothing is manufactured to come within the mischief of the Central Excises and Salt Act, 1944 and the impugned notice to sho cause is full of inherent infirmities and it may be quashed accordingly. It is a further case of the petitioners that by notice to sho cause the cases have been prejudged and the denial of giving benefit to the exemption is also contrary to and inconsistent with the provision of the Excise law.

(2.) Mr. Ganguly learned Advocate appearing for petitioners has drawn attention of the court to a decision "Lathia Industrial Supplies Co. Pvt. Ltlector of Central Excise, Baroda" where the Apex Court of the country has found that Section 2(f) of the Central Excises and Salt Act, 1944 defines 'manufacture' and fixation of cut off date by Excise authorities for which re rubberising and re lining of old and used vessels would not be treated as "manufacture" and accordingly the process, being the same throughout must be treated as not amounting to "manufacture" both before and after that date. Mr. Ganguly has also drawn the attention of the court to a decision reported in 1983 E.L.T. 876 {Associated Pigments Limited v. Collector of Central Excise, Calcutta and Others) wherein Chittatosh Mookerjee, J. (as His Lordship then was) found that the conversion of pure lead or lead ingots into suboxide and lead monoxide does not amount to manufacture as envisaged by Section 2(f) of the Central Excise Act. It was found that la is well settled that when an article undergoes a manufacturing process, a ne or different article emerges having a distinct name, character and use. Therefore, manufacture does not mean merely to produce some change in its substance. Another aspect has been considered in the said decision that if the writ petition has already been entertained and the petitioner has also established his case on merits, the writ petition cannot be dismissed on the ground of availability of alternative remedy.

(3.) Mr. Sanyal learned Counsel appearing for the respondents has submitted that the steps taken by the respondent in issuing the inpugned notice to sho cause are well justified in la inasmuch as the petitioners have been found to manufacture items which have the marketability and there is nothing wrong in issuance of the impugned notice and the allegations made by the petitioners are unwarranted and uncalled for.