Gokal Chand Mital, J.

1. Purely a legal issue arises in the writ petition, whether partly skimmed milk powder is a separate marketable commodity as compared to skimmed milk powder and whether both the commodities are subject to levy of excise duty under sub-heading 0401.13 of Chapter 4 of the Central Excise Tariff, In case partly skimmed milk powder is not leviable to central excise, question regarding the jurisdiction of the respondents to levy central excise would be the next for determination.

2. These legal issues arise on the following facts : Food Specialities Ltd. (hereinafter referred to as #24;the petitioner#25;), is manufacturing a product known as #24;Nestle Everyday Daily Whitener for tea and coffee#25; and on the packing the ingredients mentioned are #24;partly skimmed milk and Sucrose#25; and the analysis of the contents of milk fat are mentioned 19.0 per cent. A copy of the label is Annexure PI to the petition.

3. From 1-3-1983 to 28-2-1989, skimmed milk powder was exempted from excise duty. During that period excise duty was sought to be levied on the item in dispute and ultimately the petitioner succeeded that excise duty was not leviable. (See order Annexu