JUDGMENT
1. The appellant herein filed writ petition No. 31525/1982 praying for quashing of the order Annexure-G, dated 24-7-1982 passed by the Assistant Collector of Central Excise withdrawing the classification list dated 26-11-1982 effective from 27-11-1981 approved by the department, and directing the appellant to submit a revised classification list for the relevant period without claiming full exemption under the Notification No. 80/80, dated 19-6-1980 as amended. The learned single Judge held that the appellant was not entitled to claim full exemption under the aforesaid notification and therefore the order Annexure-G was justified. The judgment and order of the learned single Judge is impugned in this appeal by the appellant.
2. The relevant facts of the case are not in dispute. The petitioner is a manufacturer of rubber products which admittedly is exigible to duty under Tariff Item No. 16A (i) of Schedule-I to the Central Excises and Salt Act, 1944 hereinafter referred to as the Act’. Factory Unit No. I situated at No. 122, Industrial Suburb, Rajajinagar, Bangalore, is a factory belonging to M/s. Regal Rubbers which had been manufacturing identical goods in the aforesaid factory. The appellant took on sub-lease the rights in respect of the premises, equipments, and machinery etc., of the aforesaid factory from M/s. Regal Rubbers. Thereafter, the appellant started production of similar products with effect from 1st December, 1981 after obtaining L4 licence to manufacture such rubber products in the said factory. As required, the petitioner filed a classification list under Rule 173B of the Central Excise Rules (hereinafter referred to as the Rules) showing the manufactured rubber products as dutiable under Tariff Item No. 16A (i) of the Schedule-I but entitled to exemption from payment of duty under Notification No. 80/80 dated 19-6-1980 as amended, issued under Rule 8 of the Rules. The classification list as approved on 27-11-1981 and monthly returns filed thereafter were also accepted in due course.
3. On 13-5-1982 respondent No. 1 issued notice to the appellant to show cause why the classification list approved on 27-11-1981 should not be withdrawn and as to why the Central Excise duty on the clearances of rubber products under Tariff Item 16A amounting to Rs. 2,40,596.13 from their factory without payment of duty from 1-12-1981 to 31-3-1982 should not be recovered from them under Section 11A of the Act. The aforesaid show cause notice is Annexure-E to the write petition. The appellant filed a reply showing cause (Annexure-F) in which he claimed that the appellant M/s. Sun Rubbers started a new independent unit and this fact was brought to the notice of the department immediately after the lease was entered into and a licence issued in form L4. It was the case of the appellant that the manufacturing operation conducted and carried on by M/s. Sun Rubbers in the aforesaid factory premises had no connection whatsoever with the business and manufacturing activity of M/s. Regal Rubbers, which was an independent and separate assessee under the Central Excises and Salt Act, 1944. Therefore the clearances made by M/s. Regal Rubbers prior to 1-12-1981 from the abovesaid factory should not be clubbed or taken into consideration for purposes of granting any exemption to M/s. Sun Rubbers under the exemption notification dated 19-6-1980 as amended from time to time. It was also contended that the classification list approved by the department could not be withdrawn unless evidence was brought on record to show that the assessee had suppressed particulars or had furnished inaccurate particulars while submitting the classification list.
4. The Assistant Collector of Central Excise by his impugned order, Annexure-G, held that it was not disputed that M/s. Sun Rubbers and Regal Rubbers were distinct legal entities and they were not in any way connected to each other. However, for getting benefit of exemption under the notification, the value of clearances should be computed not only manufacturer-wise but also factory-wise. Unless both the conditions were satisfied, exemption under the exemption notification could not be claimed. On an interpretation of the notification, he held that if the manufacturing facilities of any particular factory were utilised by more than one manufacturer, the clearances on behalf of such manufacturers had to be clubbed together to determine the eligibility of that factory for such exemption. After clubbing together the clearances, full exemption from payment of excise duty was to be granted in respect of the first clearances of Rs. 7.5 lakhs, and only partial exemption was permissible in respect of the value of the next clearances to the extent of Rs. 7.5 lakhs.
5. The learned single Judge has upheld the legality of the order Annexure-G holding that in terms of the exemption notification, it was permissible to take into account the aggregate value of clearances made from a factory during the financial year, even though the clearances may be by more that one independent manufacturer or owner whose goods have been manufactured in any factory. He has further held that the notice issued under Section 11A of the Act was in accordance with law.
6. Learned Counsel for the appellant has urged before us three main submissions :
Firstly, it was submitted that the interpretation of the notification dated 19-6-1980 by the Assistant Collector as well as the learned single Judge is erroneous.
Secondly, it was contended that once the classification list had been approved, the order approving the classification list should not be reviewed by the same authority as there was no power of review vested in such authority. The power under Section 11A of the Act could not be exercised for re-opening approved classification list.
Thirdly, it was submitted that the appellant was in independent manufacturer of rubber products and had no connection whatsoever with the earlier manufacturer. As such, the clubbing of the value of clearances of the earlier manufacturer with the value of clearances of the appellant was contrary to law.
7. We shall first consider the exemption notification which is Annexure -D to the write petition for its true meaning and import. It will be useful to reproduce the relevant provisions of the notification.
“In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944 and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 71/78-Central Excise, dated 1st March, 1978, the Central Government hereby exempts the accessible goods of the description specified in column (3) of the Table hereto annexed (hereinafter referred to as the “specified goods”) and falling under such item No. of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), as is specified in the corresponding entry in column (2) of the said Table, and cleared for home consumption on or after the 1st day of April in any financial year, by or on behalf of a manufacturer from one or more factories.
(a) In the case of first clearances of the specified good upto an aggregate value not exceeding rupees seven and a half lakhs, the whole of the duty of excise leviable thereon and
(b) In the case of the clearances (being clearances of the specified goods of an aggregate value not exceeding rupees seven and a half lakhs) immediately following the said first clearances of the value specified in Clause (a) from so much of the duty of excise leviable thereon under the said item (read with any relevant notification issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 and in force for the time being) as is in excess of seventy five per cent of such duty :
Provided that the aggregate value of clearances of the specified goods form any factory by or on behalf of one or more manufacturers.
(i) at nil rate of duty in terms of Clause (a) of this paragraph, or
(ii) at reduced rate of duty in terms of Clause (b) of this paragraph, shall not in either case exceed rupees seven and a half lakhs in any financial year.
2. Nothing contained in this notification shall apply to a manufacturer :-
(i) If the aggregate value of clearances of all excisable goods by him or on his behalf, for home consumption, from one or more factories, during the preceding financial year, had exceeded rupees twenty lakhs.
(ii) If the aggregate value of clearances of the specified goods by him or on his behalf, for home consumption, from one or more factories during the preceding financial year, had exceeded rupees fifteen lakhs.
3. Where a manufacturer has not cleared any specified goods in the preceding financial year, or has cleared any such goods for the first time or after the 1st day August in the preceding financial year, the exemption contained in this notification shall be applicable to such manufacturer.
(a) If he files a declaration with the Asst. Collector or Central Excise
(i) that the aggregate value of clearances of all excisable goods by him or on his behalf, for home consumption from one or more factories, during the financial year is not likely to exceed rupees twenty lakhs and
(ii) that the aggregate value of clearances of the specified goods by him or on his behalf, for home consumption, from one or more factories, during the financial year is not likely to exceed rupees fifteen lakhs; and
(b) (i) if the aggregate value of clearance of all excisable goods by him or on his behalf, for home consumption, from one or more factories, during financial year does not exceed rupees twenty lakhs; and
(ii) if the aggregate value of clearances of the specified goods by him or on his behalf, for home consumption, for one or more factories, during the financial year does not exceed rupees fifteen lakhs.
4. Nothing contained in this notification shall apply :
(i) if the aggregate value of clearances of all excisable goods, from any factory by or on behalf of one or more manufacturers, for home consumption, during the preceding financial year, had exceeded rupees twenty lakhs;
(ii) if the aggregate value of clearances of the specified goods from any factory by or on behalf of one or more manufacturers, for home consumption, during the preceding financial year, had exceeded rupees fifteen lakhs.”
It is not in dispute that the goods manufactured by the appellant are specified goods under the notification Annexure-D. It is also not in dispute that but for the exemption granted, duty is leviable on such goods under Tariff Item No. 16A (i) of Schedule I to the Act. Clause (1) of the notification provides that first clearances of the specified goods by or on behalf of a manufacturer upto an aggregate value not exceeding Rs. 7.5 lakhs from one or more factories, is entitled to exemption from payment of the whole of the duty. However, in respect of clearances of specified goods of an aggregate value not exceeding Rs. 7.5 lakhs immediately following the said first clearances, only partial exemption from payment of excise duty is permissible. The proviso, which is most relevant, makes it clear that the aggregate value of clearances of the specified goods from “any factory” by or “on behalf of one or more manufacturers” shall not exceed Rs. 7.5 lakhs in any financial year in respect of the clearances which attract nil rate of duty, and Rs. 7.5 lakhs in respect of clearances for which concessional rate of duty was prescribed. This obviously means that the aggregate value of total clearances from any factory shall not exceed Rs.15 lakhs, out of which clearances valued at Rs. 7.5 lakhs shall get full exemption while the remaining Rs. 7.5 lakhs shall attract concessional rate of duty. Under the proviso, it is immaterial whether the specified goods in any factory are manufactured by or on behalf of one manufacturer or more than one manufacturer.
Clause (2) of the notification further clarifies the type of manufacturers to whom the benefit of exemption shall not be extended. There are two classes of manufacturers, who are excluded from the the benefit of exemption namely (a) a manufacturer, whose aggregate value of clearances of all excisable goods by him or on his behalf from one or more factories, during the preceding financial year exceeded rupees 20 lakhs, and (b) a manufacturer whose aggregate value of clearances of the “specified goods” in like manner during the preceding financial year exceeded Rs. 15 lakhs. Simply state manufacturers whose aggregate value of clearances of all accessible goods in the preceding financial year exceed Rs. 20 lakhs are not entitled to the benefit of exemption under the notification. Similarly, a manufacturer whose aggregate value of clearances of the specified goods in the preceding financial year exceeded Rs. 15 lakhs shall also not be entitled to the benefit of exemption. In the instant case, we are concerned with a manufacturer manufacturing specified goods. Obviously the notification does not intend to confer benefit of exemption on those manufacturers whose aggregate value of clearances in the preceding year in respect of specified goods exceeded Rs. 15 lakhs. In other words, the manufacturer should not be one who is excluded under Clause 2 of the notification.
Clause 4 of the notification then refers not to the manufacturer but to the factory where the goods are manufactured. A condition imposed by the notification is that the goods must be manufactured at a factory which is not of the description mentioned in Clause 4. Thus, goods manufactured in a factory whose aggregate value of clearance of excisable goods by or on behalf of one or more manufacturers during the preceding financial year exceeded Rs. 20 lakhs, are not eligible for the benefit of exemption. Similarly specified goods manufactured in a factory, where the aggregate value of clearances by or on behalf on one or more manufacturers during the preceding financial year exceeded Rs. 15 lakhs, are also not eligible. The goods must therefore be manufactured in a factory not excluded under Clause 4.
8. It will thus appear from a perusal of the relevant provisions of the notification that the notification extends the benefit of exemption from payment of excise duty only if the conditions specified therein are fulfilled. Clause 1 of the notification prescribes that in respect of specified goods total exemption from payment of excise duty is permissible to a manufacturer in respect of the first clearances not exceeding Rs. 7.5 lakhs. For subsequent clearances, not exceeding Rs. 7.5 lakhs, only partial exemption is provided. The proviso refers to the factory where such manufacture takes place. It provides that in any financial year the aggregate value of clearances from any factory by one or more manufacturers, entitled to exemption total or partial, shall not exceed Rs. 15 lakhs, out of which the first clearances of the value of Rs. 7.5 lakhs shall earn total exemption, and the next clearances valued at Rs. 7.5 lakhs shall attract only concessional rate of duty. This means that the total clearances from any one factory, whether on behalf of one or more manufacturers, that shall be eligible for the benefit of total or partial exemption, shall not be more than Rs. 15 lakhs. Any clearances over and above Rs. 15 lakhs shall attract the normal rate of duty. But this is not all. It must further be shown that the manufacturer of the specified goods in one who is not excluded under Clause 2. Similarly, the factory where the goods are manufactured is not one excluded under Clause 4. In a nutshell a manufacturer of specified goods is entitled to the benefit exemption to the extent of aggregate value of clearances not exceeding Rs. 15 lakhs out of which the clearances to the extent of Rs. 7.5 lakhs are entitled to complete exemption from payment of excise duty while the balance not exceeding Rs. 7.5 lakhs attract concessional rate of duty. The total clearances from any factory, whether by or on behalf of one or more manufacturers eligible for total or partial exemption shall not exceed Rs. 15 lakhs. Such exemption shall be granted only if the aggregate value of clearances of the specified goods by the manufacturer in the preceding financial year did not exceed Rs. 15 lakhs, and in addition the factory from which the specified goods are cleared must not be a factory which had cleared in the preceding financial year, specified goods of value aggregating more than Rs. 15 lakhs. The manufacturer must be eligible for the exemption, and the factory from where he effects the clearances must also be one not excluded under Clause 4. The notification therefore not merely takes into account the manufacturer, but also the place of manufacture and unless both conditions are fulfilled, exemption cannot be claimed under the notification. The scheme of the notification is to give benefit of exemption to small manufacturers manufacturing their goods in small factories. Even if the manufacturer is qualified for the exemption, he may be denied benefit of exemption if the place of manufacture is a factory excluded under Clause 4. For the purpose of calculating the aggregate value of clearances from any factory, the manufacture by one or more manufacturers in that factory has to be taken into account.
9. In the instant case, the respondents contended that in the same financial year the previous manufacturer in the factory, namely, M/s. Regal Rubbers had cleared specified goods of the aggregate value of Rs. 7.5 lakhs. The value of clearances already made from the factory had to be taken into account in granting benefit of exemption to the appellant, who was a subsequent manufacturer of similar goods in the same factory within the same financial year. To us, it appears that the contention of the respondents is justified having regard to the provisions of the notification, because the notification in so many words grant benefit of exemption partial or total only in respect of value of goods manufactured in a factory in a factory not exceeding Rs. 15 lakhs, notwithstanding the fact that the manufacture is on benefit of one or more manufacturers. In the facts of this case, therefore, the entitlement of the appellant will have to be worked out after taking into account the clearances already made and the exemption availed by M/s. Regal Rubbers from the same factory in the same financial year.
We have therefore no doubt that the benefit of total exemption extended to the appellant was unjustified. It appears that the respondents later discovered the fact that during the same financial year. M/s. Regal Rubbers had cleared specified goods from the same factory of an aggregate value exceeding Rs. 7.5 lakhs and had claimed exemption. When this fact came to their notice, a show cause notice was issued by them in exercise of powers under Section 11A of the Act.
10. It was then contended that the respondents could not review their earlier order approving the classification list in the garb of exercise of powers under Section 11A of the Act. According to the appellant this was not a case covered by Sec. 11A of the Act, and if the authorities wished to withdrawn the order approving the classification list, they had necessarily to take recourse to the provisions under the Rules and take up the matter by way of revision or appeal. On the other hand, the case of the respondents is that by reason of the mistake on the part of the respondents the classification list was approved and the appellant was given benefit of total exemption from payment of excise duty. This amounted to a “short levy” of excise duty and therefore the provisions of Section 11A of the Act were applicable for recovery of such excise duty, which was short levied. In view of the decisions of the Supreme Court on this question, the contention of the respondents must be accepted. In N. B. Sanjana v. Elphinstone Mills the Supreme Court was considering Rules 10 and 10A of the Rules as it then existed. Similar provisions are now to be found in Section 11A of the Act. The Court observed that :
“This now takes us to the question of proper interpretation to be placed on the expression short-levied” and “paid” in Rule 10. Does the expression “short levied” mean that some amount should have been levied as duty as contended by Dr. Syed Mohammad or will that expression cover even cases where the assessment is of ‘nil duty’, as contended by Mr. Daphtary. What is the meaning of the word “paid” in Rule 10 ? It is contended on behalf of the appellants that it means “actually paid”, whereas, according to the respondents, it means “ought to have been paid”. Taken literally, the word “paid” does mean actually paid in cash. That means that a party or an assessee must have paid some amount of duty whatever may be the quantum. If this literal interpretation is placed on the expression “paid” in rule it is needless to state that it will support in a large measure the contention of Dr. Syed Mohammad that Rule 10 contemplates a short-levy in the sense that the amount which falls short of the correct amount has been assessed and actually paid. In our opinion, the expression “paid” should not be read in a vacuum and it will not be right to construe the said word literally, which means actually paid. That word will have to be understood and interpreted in the context in which it appears in order to discover its appropriate meaning. If this is appreciated and the context is considered it is apparent that there is an ambiguity in the meaning of the word “paid”. It must be remembered that Rule 10 deals with recovery of duties or charges short levied or erroneously refunded. The expression “paid” has been used to denote the starting point of limitation of three months for the issue of a written demand. The Act and the Rules provide in great detail the stage at which and the time when the excise duty is to be paid by a party. If the literal construction that the amount should have been actually paid is accepted, then in case like the present one on hand, when no duty has been levied, the Department will not be able to take any action under Rule 10. Rule 10A cannot apply when a short-levy is made through error or mis-construction on the part of an officer, as such a case is specifically provided by Rule 10. Therefore, in our opinion, the proper interpretation to be placed on the expression “paid” is “ought to have been paid” …….
It was observed after referring to decided cases :
“Applying the above principles to the case on hand, the expression “paid” in Rule 10 can be reasonably read as “ought to have been paid”. Similarly even in cases where there has been a nil assessment due to one or other of the circumstances mentioned in Rule 10 and if subsequently it is found that duty is payable, then the entire amount of duty should be considered to have been short-levied ……”
“…. It follows that in order to attract Rule 10, it is not necessary that some amount of duty should have been assessed and that the said amount should have also been actually paid. That provision will apply even to cases where there has been a nil assessment in which case the entire duty later on assessed must be considered to be the duty originally short-levied ….”
In D. R. Kohli v. Atul Products Ltd. , the Court was considering a notification under which an exemption from payment of excise duty was granted. Under the notification dyes specified in the schedule were exempted from the whole of the excise duty leviable thereon only if such dyes were manufactured from any other dye on which excise duty or countervailing customs duty had already been paid. In that case the manufacturer had manufactured specified goods from dyes which he had purchased from the open market and upon which no excise duty had been paid or was payable. The manufacturer found that the exemption from duty on the specified goods brought greater benefit that the duty that may be paid on the dyes from which such specified goods were manufactured. It therefore wrote to the excise authorities offering to pay excise duty on the dyes purchased by it, from which specified goods were to be manufactured. Since the Superintendent of Central Excise wrote to the manufacturer saying that he had no objection to that course being followed, the manufacturer paid the excise duty on the fast Colours basis which they purchased from the local manufacturer for the manufacture of specified goods, and then claimed exemption under the notification from payment of excise duty on the specified goods manufactured by it. The Court after considering the terms of the notification came to the conclusion that under the notification exemption could be claimed only where dyes used in the manufacture of other dyes were liable to payment of exercise duty when they were manufactured and such duty had been paid. A voluntary payment of excise duty on dyes which were not liable for such payment would not earn any exemption under the notification. Having so held, the Court considered as to the appropriate provision of law under which action could have been taken in such a case by the Central Excise Authorities. The Court considered the facts and circumstances of the case and came to the conclusion that the case squarely fell under Rule 10A of the Rules, which was residuary provision. It may be stated that Rule 10 and 10A as it then existed have since been omitted and similar provisions incorporated in the Act itself under Section 11A.
In D. R. Kohli’s case, the benefit of exemption having been wrongly extended to the manufacturer, the Court held that excise duty payable on the specified goods was recoverable under Rule 10A of the Rules. In Sanjana’s case the Court held that even where nil duty was levied when duty was in law payable, that would amount to a short levy of duty under Rule 10. In view of these two decisions of the Supreme Court it must be held that when the authorities under the Act approved the classification list and extended to the appellant the benefit of total exemption from payment of excise duty by endorsement of nil duty on the classification list, excise duty payable was short levied. For recovery of such excise duty short levied, the provisions of Section 11A of the Act were For recovery of such excise duty short levied, the provisions of Section 11A of Act were attracted.
In the instant case, it is not necessary to consider whether this case, is covered by main part of Section 11A or by the proviso to sub-section (1) of Section 11A, because in the instant case, the notice to show cause was admittedly issued within 6 months from the relevant date. The question of limitation therefore does not arise in the instant case.
11. It was contended by the appellant that once the classification list had been approved, the order granting the approval could not be reviewed by the same authority in the absence of any power of review expressly conferred upon such authority. In such a case, according to the Counsel for the appellant, there was no question of short-levy or non-levy and therefore Section 11A was not attracted. We have already held that having regard to the judgments of the Supreme Court, in such a case provisions of Section 11A will be attracted and even where there is nil assessment, it will be a case of short levy. We have no doubt that in the instant case nothing more was sought to be done except recovery of excise duty short levied. The withdrawal of the classification list by the respondents was only for the purpose of deleting that part of the approval whereby nil duty was assessed giving to the appellant the benefit of exemption. No other change was sought to be made. Learned Counsel for the appellant is right in contending that where a quasi-judicial authority in exercise of its statutory powers passes an order, that order cannot be reviewed by the same authority unless it is vested with the powers of review. There is no inherent power of review, and such a power must be vested in the authority by the statute. Under Rule 173B the assessee is required to file a list of goods for approval of the Officer giving full description of excisable goods produced or manufactured by him and all other goods produced or manufactured by him and intended to be removed from his factory. He has also to disclose all the excisable goods already deposited or likely to be deposited from time to time without payment of duty in his warehouse. The classification list must also give the number of the schedule to the Act under which the goods fall and the rate of duty leviable on such goods,. The proper Officer is required to make an enquiry and thereafter to approve the list with such modifications as are considered necessary. The duty is thereafter payable in accordance with such list. Rule 173B therefore envisages a classification list which gives the description of the excisable goods, the tariff entry under which it falls and the rate of duty leviable on such goods. The purpose is to identify the goods manufactured and to determine under which tariff item such goods fall for the purpose of levy of excise duty. In the instant case, a classification list as required by Rule 173B was filed and approved. While approving the classification list as endorsement was made by the proper officer that tariff classification rate of duty leviable in respect of all goods of item No. 4 was approved until further orders, thereby approving the list whereunder benefit of exemption had been claimed.
12. There is no dispute about the particulars of the goods furnished by the appellant and accepted by the proper authority under the Act. It is not the case of the respondents that the classification of goods was wrongly made and that requires to be reviewed. If there was no exemption notification, the classification list filed by the appellant could not be found fault with because it gave a correct description of the goods manufactured and the tariff item under which they fell. It is by reason of the endorsement made by the proper officer regarding exemption from payment excise duty that, it became necessary to modify the order of approval. In our view what is sought to be done is not to review the classification list but merely to correct the endorsement of the proper officer extending to the goods manufactured the benefit of exemption under the notification dated 19th June, 1980 as amended from time to time. The mistake was only in relation to the applicability of the exemption notification and not to the classification of the goods. In such a case, it cannot be said that the classification list approved under Rule 173-B was sought to be reviewed. In effect it was intended to correct the error subsequently discovered by the authorities, which disentitled the appellant from claiming exemption from payment of excise duty. If by the order impugned, the authority intended to make any alteration in the description of the goods, or the tariff entry under which the goods fell, perhaps the argument that it amounted to a review of the classification list may have force. In the instant case, accepting the declaration made by the appellant as regards the description of goods manufactured, and the tariff item under which duties were leviable thereon, all that is sought to be modified is that part of the approval order whereby the benefit of exemption was extended to the appellant, which consequently justified demand for the excise duty short levied.
13. The last submission urged on behalf of the appellant is also devoid of merit. In the instant case, the appellant has not started a new factory of his own. It is also not his case that he has purchased any other unit which earlier belonged to another manufacturer. He has taken on sub-lease the rights in respect of the premises, equipments and machinery, etc. of the aforesaid factory from M/s. Regal Rubbers. This only means that the appellant has acquired the right to manufacture his products in the factory for a certain period. The factory, including the land and building, equipments and machinery do not belong to them. It is therefore futile to compare his case with that of manufacturers, who set up a new unit. Moreover, having regard to the provisions of the notification with which we are concerned in the instant case, the total manufacture of specified goods from any factory, whether by or on behalf of one manufacturer or more, ….. extending the benefit of exemption. In the instant case, undoubtedly, M/s. Regal Rubbers had cleared specified goods from the same factory from which the appellant has cleared his products subsequently. As we have held earlier, in such a case, what is crucial is the clearance of goods manufactured in a factory, and it is immaterial whether clearance is by only one manufacturer or by more than one manufacturer.
14. We therefore find no merit in this appeal. This appeal is accordingly dismissed. There will be no order as to costs.