The main legal point established is that the preparation of shikakai powder amounts to manufacturing and is an excisable commodity under the Act, falling within the ambit of Chapter 33.05 and liable to excise duty.

Y. BHASKAR RAO, ACTG. C. J.

( 1 ) THE respondents 1 to 5 in the writ petition filed this appeal assailing the judgment of the learned Single Judge disposing of the writ petition directing the release of the seized stock.

( 2 ) THE brief facts of the case are that the respondent 1 is the Kar-nataka Soapnut Powder manufacturers Association (Regd.), at Bangalore. Respondent 2 is Sree Ramakrishna Soapnut works, Mysore. The writ petition is filed praying to declare that the seizure of soapnut powder and the book of accounts pertaining to the respondent 2 as highhanded and without authority of law, and further seeking a direction to the appellants to forthwith release to the respondent 2, his seized articles and issue a writ in the nature of mandamus, commanding the appellants to forbear from insisting upon the respondents registering themselves obtaining any licence in respect of the processing of soapnut into soapnut powder, the marking thereof, and also directing them to forbear from insisting upon any return of the transactions in respect of the same being filed by them, etc. Certain quantity of shikakai along with soapnut powder produced by the 2nd respondent was seized by the appellants on the ground that the same is liable to levy of excise duty and that duty has not been paid by the manufacturer. Therefore, the writ petition is filed.

( 3 ) DURING the seizure the representative of the 2nd respondent has given a statement, under compulsion. The issue raised in the writ petition is as to whether the soapnut powder/shikakai powder is liable to excise duty under the Customs Tariff for the year 1994-95. He has averred that soapnut powder is manufactured by crushing the shikakai nuts collected from the forest. Their contention is shikakai and soapnut powder are the same. The annexures produced by the respondents disclose that the Government has declared that shikakai or soapnut powder do not come under the category of Item 15-D included in the Finance Act. It was contended by the department that the soapnut powder/shik-kakai powder would come within the ambit of the items "others" grouped as 3305. 99 and therefore is liable to excise duty.

( 4 ) THE learned Single Judge after hearing both the parties came to the conclusion that the shikakai/soapnut powder belonging to the respondents do not come within the category of chapter 33. 05 of the Customs Tariff and are not liable to be confiscated as has been done in this case and hence he directed for release of the seized stock and also the Account Books. Against that present appeal is filed,

( 5 ) LEARNED Counsel for the appellants firstly contended that shikakai and soapnut both belong to different categories having different genesis. Shikakai is manufactured into shikakai powder. Therefore, it is a manufacturing commodity liable for duty under the Excise Tariff Act. The shikakai powder comes under other items in Chapter 33. 05. Therefore, it is excisable. The contention that it will not come under other items and soapnut and shikakai powder is same and are exempted from tax is not tenable.

( 6 ) LEARNED Counsel appearing for the respondents 1 to 5 contended that shikakai and soapnut are known as the same article in the market and the powder also is known with the same name as soapnut and it is exempted from tax. Therefore, it will not come under the Chapter 33. 05 as other item. There is no manufacturing process involved in it, making soapnut into powder is not a manufacture as the nature of the commodity is not changed, nor any other commodities are mixed in it. Therefore, not taxable.

( 7 ) IN view of the above contentions the important question of law that arises for consideration is: whether the shikakai powder is a taxable commodity under the Excise Tariff Act?

( 8 ) TO appreciate the above point it is relevant to note the nature of the two commodities. Botanical name of shikakai is Acacia Concinna DC, in Hindi it is called as Kochi, ritha, in bengali it is called as Ban

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