The exemption from duty under a notification does not change the character of goods as 'excisable goods' under the Act.

( 1 ) THE Petitioner has approached this Court challenging the show-cause notice issued by the superintendent of Central Excise, Hubli, calling upon the petitioner to file his objections to the proposed levy of Central Excise on the total value of the clearances made from his two factories at Goa and Hubli during the year 1976-77.

( 2 ) THIS Writ Petition deserves to be dismissed on the sole ground that the petitioner has adequate remedy under the Act. However, sine Rule Nisi is issued in the case, the matter is disposed of on its merits and the following order is made. The petitioner is a registered partnership concern, owning two factories, one at Goa and another at Hubli, for the manufacture of R. C. C. cement pipes and other allied products. The production in the Hubli factory started in the year 1960 and in Goa unit in the year 1971. In the Hubli factory the petitioner had employed more that 49 workers, and in Goa, it was less than 49 during the relevant period.

( 3 ) THE Government of India issued a Notification No. 54/1975 dated 1st March, 1975 in exercise of its powers under Rule 8 (1) of the Central Excise Rules, 1944 ('rules') which reads as follows :- "in Exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts all goods falling under Item No. 68 of the First schedule to the Central Excises and Salt Act, 1944 (1 of 1944) and produced in any factory, including the precincts thereof, whereon not more than forty-nine workers are working, or were working without the aid of power, on any day of the preceding twelve moths, from the whole of the duty of excise leviable thereon. " as per this notification the clearance made from the God Factory was exempted from levy of excise duty since the Goa factory had employed less than 49 workers. But so far as Hubli factory is concerned, it was paying duty of the goods manufactured as it was not entitled to the exemption.

( 4 ) ON 18th June, 1977, the Government of India issued another Notfn. No. 176/1977 under Rule 8 (1) of the Rules. The said notfn. is reproduced below :- "in exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) and cleared for home consumption on or after the first day of April in any financial year, by or on behalf of a manufacturer from one or more factories from the whole of the duty of excise leviable thereon, if any officer not below the rank of an Asst. Collector of Central Excise is satisfied that the sum total of the value of the capital investment made time to time on plant and machinery installed in the Industrial unit in which the goods, under clearance, are manufactured, is not more than rupees ten lakhs : provided that this exemption shall not be applicable to a manufacturer if the total value of all excisable goods cleared by him or on his behalf in the preceding financial year had exceeded rupees thirty lakhs. "

( 5 ) AFTER this notification was issued, there was a change in the criterion for granting exemption in respect of the duty on excisable goods leviable under the Act. The petitioner, was issued a show-cause notice dated 30th June, 1979, as per Anx. D. , proposing to club the clearances from the two factories and levy excise duty in accordance with Notfn. 176/1977. Applying the said notification to the petitioner's case, the total value of all the excisable goods cleared by the petitioner from the two factories owned by him, exceeded Rs. 30 lakhs during the relevant period. It was, therefore, proposed to levy excise duty on the total value of the goods cleared from 18th June, 1977 upto 31st March, 1978. To this show-cause notice the petitioner replied by his letter dated 27th June, 1977 objecting to the proposed levy and also contended that their total turnover did not exceed Rs. 30

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