The main legal point established in the judgment is that the rule of exclusion of the writ jurisdiction is a matter of discretion to be exercised by the court considering the facts and circumstances of the case.

( 1 ) THIS Writ petition has been preferred under Article 226 of the Constitution of India against the judgment and order dated 5. 12. 2001 passed by respondent No. 2 The Customs, Excise and Cold (Control) Appellant Tribunal, New Delhi under Section 35 (c) (1) of the Central Excise Act 1945 (in short called act) allowing the appeal directing both the divisions for a common central registration or transfer of the credit from distillery division to the Sugar Division by setting aside the order passed by the Commissioner Central Excise. Heard Sri Subodh Kumar, learned counsel for the petitioner as well as Sri Bharat Ji Agrawal, learned Senior Advocate alongwith Sri Piyush Agrawal, learned counsel for the respondents.

( 2 ) THE facts necessary for adjudication of the present writ petition are that the appellant company has two manufacturing Divisions, one of them manufacturing Sugar and Molasses and the other manufacturing Industrial and potable Alcohol. The Sugar Division and the Chemical (Distillery)Division are located across a public road. They have separate Central Excise registration and are maintaining separate statutory records. The respondent wanted to have a common registration for the two divisions and, accordingly, applied to the jurisdictional commissioner of Central Excise. The Commissioner, after enquiries conducted through his subordinate officers, rejected the application. The decision of the Commissioner was ultimately communicated to the respondent company by the jurisdictional Assistant Commissioner by letter dated 24. 8. 2001 which was accompanied by a copy of letter dated 22. 8. 2001 of the Additional Commissioner (Tech ). of central Excise addressed to the Assistant Commissioner. The two letters, read together, communicated to the respondent comp. That their application for common registration had been rejected by the commissioner on the ground that the appellants two divisions could not be considered to be situated in the same place of business and, therefore, a common registration would not be granted in view of the decision of the Bombay High Court in the case of Jenson and nicholson (India) Ltd. v. Union of India (1981) ELT 128 (Bom ).

( 3 ) THE appeal before the Tribunal was preferred against the above order dated 24. 8. 2001.

( 4 ) IN the appeal of memorandum, the respondent Company have stated that the Sugar Division and the Chemical (Distillery) division are two parts of the same factory situate in the same place. The two are separated only by a road. The by-products of the Sugar Division, which are inputs for the Chemicals Division, are supplied from the former division to the latter directly through overhead conveyor belts. Common balance sheet and other accounting records are maintained for the two divisions. The Income Tax assessment and the sales tax assessment are also common for the divisions. It was for avoiding the inconvenience of maintaining voluminous separate records and of filing separate returns for Central Excise purposes that the appellants applied for a single registration for the two Divisions. The respondent company have further stated that the assistant Commissioner forwarded their application to the Commissioner suggesting in his covering letter that the request of the party was liable to be rejected in view of an earlier order passed in a similar case of M/s K. M. Sugar Mills, Moti Nagar, The respondent has further pointed out that the said order of the Commissioner rejecting the request of M/s K. M. Sugar mills for single registration has been set aside by the Tribunal as per order dated 3. 9. 2001. The respondent company also relied on Notification No. 35/2001-CE (NT) dated 26. 6. 2001 issued by the CBEC under Rule 9 (2) of the Central Excise (No. 2) Rules 2001, where under the Board has provided that if two or more premises of the same factory are separated by public road, railway line or canal, the commissioner of Central Excise may, subject to proper accoun