S.K.Dutta J. - (1.) These two appeals are against judgment and orders of Banerjee J. dated March 30, 1965 in C. R. Nos. 46W, 469W and 470W/62 heared analogously and covered by one judgment whereby the Rules were discharged. F.M.A. No. 146/66 is arising from C.R. 464W/62 while R.M.A. 147/66 is from C.R. 470W/62. There is no dispute that the common question of fact and law are involved in these two appeals and they are heard together and covered by this judgment. The only point for consideration is whether mustard oil comes within the ambit of Item 13 in first schedule to the Central Excises and Salt Act, 1944. This Item was introduced by the Finance Act of 1956 and is to the following effect . "Vegetable Non-essential Oil all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power."
(2.) The petitioners had been manufacturers of mustard oil by aid of power at the material time and with the introduction of the above item, they had to take out a licence for manufacture of mustard oil which according to the authorities became subject to excise duty at the rate of Rs. 75 per ton, thereafter increased from time to time. In the Finance Act, 1960, this item was renumbered as item No. 12. The petitioners and their association did not accept mustard oil as coming within the ambit of them No. 23 or later on Item 12 and were continuously making representation against the imposition which according to them was without authority of law. The excise duty continued til prior to March 1, 1963 when it was discontinued. Petitioners failing to obtain relief moved this Court in constitutional writ jurisdiction for Writs commanding the respondents not to levy or realise excise duty on mustard oil under the Central Excises and Salt Act, 1944. The grounds urged were the "Vegetable non-essential oil all sorts" did not include mustard oil and those terms were to vague to include any specific kind of vegetable oil. On this petition the above rules were issued.
(3.) The respondents opposed, the Rule by filing an affidavit-in-opposition denying that Itern 23 or Item 12 did not include mustard oil or that the words "Vegetable non-essential oils" were vagee as alleged. The assessments were thus legal and valid and it was contended that the petitioners were not entitled to any relief. Reference was made to various authorities in support and subsequently clarification was given by a press note which is as follows :;