ORDER
1. The petitioner No. 1 in this petition carries on business of stitching HDPE Woven sacks and petitioner No. 2 carries on the business of printing HDPE woven sacks. According to the petitioners, they received from their customers HDPE fabrics for stitching HDPE woven sacks and then do the job of printing on the stitched sacks. The petitioners are paid only for the job work of stitching and printing done by them. The Central Government in exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, by Notification No. 223/86-C.E., dated 3.4.1986, exempted woven sacks of Polymers of ethylene or propylene or its combination thereof, falling under the heading No. 46.01 or 63.01 of the Schedule from the whole of the duty of Excise specified in the said Schedule. The aforesaid notification was amended by Notification No. 453/86-C.E., dated 20-11-1986 by which a provision was added to the aforesaid notification, whereby the exemption contained in the notification dated 3-4-1986 was to apply only if such woven sacks are manufactured on flat knitting looms. Thereafter vide another notification by the Government, No. 3/87-C.E., dated 7-1-1987 the aforesaid notifications were amended and it was clearly indicated therein that the woven sacks of Polymers of ethylene or Propylene or as the case may be, a combination thereof, were not subjected to the exemption of Excise duty, if the aforesaid woven sacks are manufactured on circular looms. According to the petitioner No. 1, he works on a stitching machine only and is not involved in manufacturing HDPE woven sacks on circular looms and he is not in possession of circular looms. The Excise authorities, however, went to the establishment of the petitioners on 29/30-7-1988 and seized HDPE woven sacks from both the petitioners and a seizure memo was prepared by respondent No. 4, a copy of which is Annexure B. After the seizure, the petitioner No. 1 sent a letter dated 2-8-1988 to the Collector Central Excise (respondent No. 1) making a request therein that the HDPE woven sacks seized by respondent Nos. 3 and 4 from the premises of petitioner Nos. 1 and 2 are not liable to Excise duty and demanded immediate release of the goods. But even after a lapse of two months of the seizure, the seized goods have not been released. The petitioners claims that the seizure of the goods is completely illegal, arbitrary and without jurisdication.
2. A show cause notice was issued to the respondents. In the reply filed by the respondents to the show cause notice, it has been stated that HDPE sacks woven on circular looms are classifiable under heading No. 63.01 of the schedule to the Central Excise Tariff Act, 1985 and Central Excise duty at 12% ad valorem is leviable on such excisable goods as the notification referred to by the petitioners does not exempt such excisable goods, during the period under question i.e. from 1-4-1988 onwards. During the course of preventive checks on 29-7-1988, the Preventive Officers at the Indore Headquarters noticed some bales of HDPE woven sacks lying in the outer part of the factory premises of M/s. V.G. Biscuit and Bread Factory situated at 88, Pologround, Indore. On being asked, one Shri Ashok Pahuja of M/s. V.G. Biscuit and Bread Factory stated that the other part of the premises has been rented out to M/s. Shubham Tailors and M/s. Plasto Craft, who are enganged in the stitching and printing work of HDPE sacks respectively. The petitioner No. 1 on being asked, stated that stitches HDPE sacks on job basis for M/s. The phosphate Co., Calcutta from HDPE fabrics cut pieces received from M/s. Raj Packwell, Pithampur, who manufactures HDPE fabrics on circular looms. Thereafter other statements were also recorded and it was found that the clearance of about 5,43,000 HDPE sacks woven on circular looms has taken place since 1-4-1988 from the said premises without observance of Central Excise formalities and payment of Central Excise duty as leviable thereon. As the HDPE fabrics used in stitching of the HDPE woven sacks were woven on circular looms by M/s. Raj Packwell, Pithampur, therefore, the officers on reasonable belief that the said HDPE bags in fact are being manufactured by or on behalf of M/s. Raj Packwell, Pithampur and are liable for confiscation, seized 33,411 HDPE bags kept in the premises, valued at Rs. 1,50,349.50 for violation of the provisions of Rules 173G, 174 and 226 of the Central Excise Rules, 1944 under proper Panchnama on 29/30-7-1988 and the seized goods were handed over to Shri Mamchand Sharma on supratnama for keeping them in safe custody. The details of the manufacturer of these excisable goods and Central Excise duty liability is under investigation. The petitioners have filed premature petition when the investigation is not complete. The investigation is now in progress and therefore, it cannot be concluded whether the contention by the petitioners is fully correct or not.
3. After going through the documents filed along with the petition and considering the argument advanced by the learned Counsel for the parties, we are of the opinion that this petition does not deserve admission. It is not in dispute that the matter is still under investigation and the respective contentions of the parties pertaining to the facts are not yet clear. The respondents are not in a position to say whether the contentions pertaining to the facts, as stated by the petitioners, are correct or not. The authenticity of these contentions can be ascertained only after the investigation is complete. Therefore, in our opinion, the petition is premature. Even if the petition is directed for hearing, this Court shall not be in a position to decide the controvertial contentions pertaining to justifiability or otherwise of the confiscation. This Court in Vijayant Travels v. R.P. Ghatnekar 1984 (16) ELT 73 (M.P) (M.P. No. 566 of 1981) has taken a view that when a matter is under investigation the correctness or otherwise of the facts stated by the petitioner can be decided only after the enquiry of the facts and in the circumstances writ cannot be issued. We respectfully agree with the aforesaid view taken by this Court and find that the petition filed is premature and therefore, should be dismissed.
4. The petition is accordingly dismissed. However, there shall be no order as to costs.