Bimal Chandra Basak, J. - (1.) This appeal is directed against the judgment and order passed by the learned Single Judge on the 22nd December, 1976 whereby the learned Judge held that the notice issued in the instant case by the Respondents to the petitioners in the main writ-petition under Rule 10 of the Central Excise Rules 1944 (hereinafter referred to as the said Rules) is without jurisdiction inasmuch as the condition precedent to the issue of such a notice do not and have not been shown to exist and consequently the order of the Revisional Authority which purports to confirm the aforesaid notice is ex-facie erroneous. Accordingly, the learned Judge set aside the order of the Revisional Authority dated the 12th January, 1976 and to that extent, the Rule was made absolute.
(2.) The facts of this case are as follows :- The writ-petitioner carries on business of manufacture of electrical insulators. One of the materials used in such manufacture is porcelain. As correctly set out by the learned Judge, the facts are as follows :- "Item 23B of the Central Excise Tariff as contained in the first schedule of the Central Excise Act reads as follows : 23-B. Chinaware and porcelainware, all sorts, (4) Not otherwise specified."
(3.) The Central Board of Excise & Customs by its communication No. 5/24/61-CXV1 dated the 23rd September, 1961 laid down that articles of porcelain were fitted with metal parts should be charged to Central Excise Duty on the value of the finished goods, by a subsequent communication F, No. 5/8/64-CXV1 dated 28th November, 1967 issued by the Under Secretary, Central Board of Excise & Customs, New Delhi addressed to all Collectors of Central Excise it was further directed as follows : "The matter has since been reviewed and the Board consider that such articles should be assessed as follows : (1) Whether porcelain portion of the insulator etc. is cleared separately the same may be assessed to duty as porcelain-ware. (2) Where the insulator etc. are cleared fully assembled with metal parts fitted thereto, the same may be assessed to duty as porcelain-ware if the j value of porcelain-ware used in the assembly is more than 50% of the value of the finished goods, if it is less than 5096, then the same should not be assessed as porcelain-ware.";