JUDGMENT

VENKATARAMIAH, J.:—This appeal by special leave is filed against the judgment and order dated November 22/23, 1978 of the High Court of Gujarat in Special Civil Application No. 577 of 1978 (reported in 1979 ELT (J) 608) filed under Article 226 of the Constitution.

2. Appellant No. 1 is a company which is engaged in the business of manufacturing different types of glass viz. figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass at Vallabh Vidyanagar in the State of Gujarat from the year 1963. Appellant No. 2 is the Managing Director of appellant No. 1. The Central Excise Department had levied and collected excise duty on the said goods on the basis that they belonged to the category of sheet glass and were therefore subject to payment of excise duty under item 23A (1) of the First Schedule to the Central Excises and Salt Act, 1944 (herein at ter referred to as the Act). On February 20, 1976, the appellants applied for the refund of excess duty paid by them from October 1, 1963 up to the of the application on the ground that the items of glass in question were distinct commercial goods known in the market as figured glass wired glass, coloured figured glass, rolled glass, coolex figured glass and coolex wired glass and could not be described in common parlance as sheet glass mentioned in Item 23A and that since they did not fall under any of the Items 1 to 67 in the First Schedule to the Act they could only be subjected to levy of excise duty under the residuary provision Item 68 in that Schedule after it was inserted in it.

3. Item 23A of the First Schedule to the Act at all material times read as:-

"23A. Glass and glassware -

(1) Sheet glass and plate glass Thirty per cent ad valorem

(2) Laboratory glassware Ten per cent ad valorem

(3) Glass shells, glass globes Fifteen per cent ad valorem

(4) Other glassware including Thirty per cent ad valorem."

4. The relevant part of tariff Item 68 which was introduced from March 1, 1975 read as:

"68. All other goods not elsewhere specified, manufactured in a factory but excluding One per cent ad valorem

(a) alcohol, all sorts including alcoholic liquors for human consumption.

(b) opium, Indian hemp and other narcotic drugs and narcotics; and

(c) dutiable goods as defined in section 2(c) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955."

5. After holding an enquiry and hearing the appellants, the Assistant Collector of Central Excise, Anand rejected the claim for refund by his order dated September 20, 1976 because he was of the view that the items of goods in respect of which dispute had been raised fell within the purview of tariff Item 23A (1). Against the said order of the Assistant Collector the appellants filed a writ petition in Special Civil Application No. 1365 of 1976 on the file of the High Court on September 28, 1976. The said petition was admitted but when it was taken up for final hearing it was contended on behalf of the Department that since the appellants had also filed an appeal against the very same order before the Collector of Central Excise they could not pursue the remedy under Article 226 of the Constitution as it stood then. In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal. The appeal was thereafter disposed of by the Collector on July 27, 1977 affirming the order of the Assistant Collector. A revision petition filed by be appellants against the order of the Collector was dismissed by the Government of India by its order dated February 2, 1978. The said order in revision was challenged before the High Court by the appellants under Article 226 of the Constitution. The High Court by its judgment under appeal reversed the decision of the departmental authorities which had been affirmed by the Central Government and held that the items of glass manufactured by the appellants namely, figured glass, wired glass, coloured figured glass, rolled glass and