The aggregate value of clearances from 'any factory' during the financial year is crucial for granting exemption under Notification No. 80/80, and the Assistant Collector's order under Section 11-A was valid.

( 1 ) THE petitioner is a manufacturer of Rubber products, which are exigible to duty under Tariff item No. 16a of Schedule I to the Central Excises, and Salt Act, 1944, ('the Act' ). On 19-11-1981 the petitioner entered into a sub-lease agreement with M/s. Regal Rubbers under which the petitioner acquired sub-lease rights in respect of premises, equipments and machinery, etc. , of factory unit No. 1, situated at No. 122, Industrial Suburb, Rajajinagar, Bangalore. The petitioner started production on 1-12-1981, and we are concerned with the clearances of the rubber products upto 31-3-1982. The petitioner applied and obtained licence - L4 - to manufacture the rubber products in the said factory. On 24-11-1981, the petitioner filed a classification list as required under Rule 173b of the Central Excise Rules ('rules') for approval by the proper authority. In the said classification list it was declared by the petitioner that the manufacturer of rubber products was dutiable under Tariff Item No. 16a (1) of Schedule I to the act. The petitioner also claimed exemption from payment to duty under Notification No. 80/80, dated 19-6-1980, as amended from time to time. Under this notification issued under Rule 8 of the Rules, exemption of the whole of excise duty is allowed subject to satisfying the requirements referred to therein.

( 2 ) THE classification list filed by the petitioner was approved by respondent-1-Asstt. Collector of central Excise and Customs on 27-11-1981, and the monthly returns filed thereafter by the petitioner were also accepted by the proper officer.

( 3 ) THEREAFTER, respondent-1 issued a show cause notice dated 13-5-1982 proposing to withdraw the approval of the classification list and also to withdraw the exemption granted to the petitioner under Notification No. 80/80. It was proposed to club the production by M/s. Regal Rubbers, the lessors with the production by the petitioner from 1-12-1981 onwards. The value of the clearance during the year would then exceed Rs. 7. 5 lakhs and as a result the petitioner was called upon to pay the Excise duty of Rs. 2,40,596. 13.

( 4 ) THE petitioner replied to the said show cause notice and claimed that he was an independent and separate manufacturer and had no connection whatsoever with the value of clearances by m/s. Regal Rubbers, the lessors and further stated that the production of the petitioner, therefore, cannot be clubbed with the clearances made by M/s. Regal Rubbers and the proposal to withdraw the exemption was opposed to the Notification No. 80/80.

( 5 ) RESPONDENT-1, by his order dated 24-7-1982 held that the petitioner was not eligible to the full exemption from payment of duty in respect of clearances made by him from 1-12-1981 to 31-3-1982 taking into consideration the value of production by M/s. Regal Rubbers upto 30-11-1981, and upheld the demand to pay the duty of Rs. 2,40,596. 13, as mentioned in the show cause notice. Being aggrieved by the said order, the petitioner has filed this writ petition challenging the same. He has also challenged the vires of the proviso to Section 33 of the Act, and has contended that the order passed by respondent-1, is without jurisdiction. It is obviously for this reason that a notice re. Rule was issued to the respondent and by order dated 1-9-1982 the operation of the impugned order was stayed subject to the condition that the petitioner furnished security for the demand made by the 1st respondent.

( 6 ) AT the hearing, learned Counsel for the petitioner Sri Chander Kumar did not seriously press the contention as to the jurisdiction of respondent-1, and confined his challenge to the application of Notification No. 80/80 to the petitioner's case. The question that arises for my consideration in this writ petition is : whether the clearances made by the petitioner between 1-2-1981 and 31-3-1982 from factory Unit I is liable to be clubbed with the clearances made by his predecessor upto 30-11-81 during the preceding

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