JUDGMENT :

ANITA SUMANTH, J.

Prayer in W.P. No. 37765 of 2016: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Prohibition prohibiting the 1st respondent from proceeding in any manner pursuant to the show cause notice series F. No. DZU/INV/F/CE/351/2015 dated 23.03.2016 issued to any Titan Eye+Store.

W.P. No. 1038 of 2017: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Prohibition prohibiting the 2nd respondent from proceeding with the adjudication of the Show Cause Notice No. 33/2016 dated 06.04.2016 issued by the 1st respondent and Statement of Demand issued pursuant thereto.

W.P. No. 1039 of 2017: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Prohibition prohibiting the 2nd respondent from proceeding with the adjudication of the Show Cause Notice No. 43/2016 dated 5.5.2016 issued by the 1st respondent and Statement of Demand issued pursuant thereto.

1. The question that arises for resolution in this writ petition is as to whether the petitioners are liable to remit excise duty on the activity of fixing of prescription lenses in spectacle frames. The provisions of the Central Excise Act, 1944 (Act) provide for the levy of excise duty on ‘manufacture’ and what is moot is whether the fixing of a lens in a spectacle frame is an activity that amounts to manufacture.

2. Show Cause Notices (SCN) have been issued to 457 Titan Eye+Stores as well as the showrooms of Premier Optical Pvt. Ltd. that sells spectacles under the brand name “Lawrence and Mayo.” In the case of Titan, a request was made by the petitioner for centralization of all the cases in one Commissionerate for ease of adjudication, since the 457 noticees were spread all over the country and to avoid multiplicity of proceedings.

3. The petitioner in W.P. No. 1039 of 2017 is a Director of Premier Optical Pvt. Ltd. and has approached this Court, since the show cause notice mulcts liability on her as the person responsible for the operations of the Company. Pursuant to the SCNs, the petitioners are now in receipt of personal hearing intimation notices calling for their appearance, at which stage, they have approached this Court by way of the present writ petitions.

4. Essentially, the process leading to manufacture of a product/commodity would involve appreciation of facts that are best left to the officers of the concerned Department. Thus, and to get over the question of alternate remedy, the petitioners would immediately draw my attention to a judgment of the Hon’ble Supreme Court in the case of Assistant Commercial Tax Officer vs. Mehta Opticians (Civil Appeal No. 773 of 1995) confirming the decision of the Rajasthan High Court on the very issue that falls for consideration in this batch.

5. The short judgment of a three Judge Bench is on point and reads as under:

“This is how Ground A(a) of the Special Leave Petition (reads):

“(a) Whether the High Court is justified in holding as under:

It is not in dispute that frames and glasses are exempted from payment of tax. The spectacles being not a different commodity would not attract tax on their sales.

Particularly, when there is no exemption notification exempting frames and glasses from payment of tax and both the frames and glasses are exigible to tax @ 8%.”

When Mr. S.K. Jain, Learned counsel for the appellant, proceeded to argue, we drew his attention to paragraph 5 of the judgment of Court under appeal, which is quoted in the ground above [.....] Mr. Jain persisted in arguing that frames and glasses were not exempted from payment of tax. We pointed out to him that it was impermissible for him to so argue when the High Court had specifically recorded that “it is not in dispute” that frames and glasses were exempted from payment of tax and no application had been made by the appellant to the High Court to correct