Suhas Chandra Sen, J.
1. The dispute in this case is about classification of N.G. Poster Paper manufactured by Orient Paper and Industries Limited, herein- after described as the petitioner company, for the purpose of assessment of excise duty.
2. Upto 28th February, 1961, Printing 3c Writing Paper and Packing & Wrapping Paper were subject to Excise Duty @ 22p. Per Kg. though the former was charged under item 17(3) and the latter under item 17(4) of the Tariff. The Finance Act of 1961 raised the Excise duty under item 17(4) to 35p. Per Kg. with effect from 1-3-61. From March, 1961 to 1st August, 1961, the Excise Office levied duty on M.G. Poster Paper under item 17(3), i.e. at the rate of 22p. per kg. as Printing & Writing Paper. In other words, M.G. Poster Paper was treated as Printing & Writing Paper. Subsequently, the Excise Deptt. considered this M.G. Poster Paper as Packing & Wrapping Paper and classified the said Poster Paper under item 17(4). The appellant paid duty under protest and represented to the Asstt. Collector for refund on the ground that the subject paper should have been classified under item 17(3) as was being done hitherto and consequently the duty collected was in excess of that leviable under the law. The Asstt. Collector rejected the claim. The appellants went up in appeal to the Collector of Central Excise, Calcutta & Orissa who also rejected the appeal and thereafter the appellants went to the Central Government in Revision Application and the Government of India declined to interfere with the orders passed by the Collector in Appeal. The Collector of Central Excise rejected the appeal stating that the Central Board of Revenue had already made it clear that any type of Poster Paper of whatever colour including white, should not be treated as Printing & Writing Paper but as packing and wrapping Paper. As such he decided the matter up holding the classification made by the Asstt. Collector and rejecting the appeal. The Govt. of India, however, without assigning any reason, did not interfere with the Order-in-Appeal and rejected the Revision Application. The Supreme Court in its judgment in C.A. 659-664 of 1965 dealt with the matter elaborately and came to the findings that the oower of the appellate authority and of the assessing authority is a quasi-judicial power. Having found that this quasi-Judicial power was not properly exercised, the Supreme Court vacated the Grder-in-Appeal as well ]as the Order-in-Revision and directed that the matter of finding fact should be left to the authority under the Act. The proceedings were remitted to the Collector for deciding the question whether M.G. Poster paper should be assessed as Printing & Writing Paper or as packing & Wrapping Paper afresh.
3. The Appellate Collector of Central Excise on 30th November, 1973 after elaborate review of the facts and evidence placed before it, held that the classification of the M.G. Poster Paper manufactured by the petitioner company should be classified under the Heading 'Printing and Wrapping Paper.'
4. The Government of India started proceedings for review of the aforesaid orders passed by the Appellate Collector of Central Excise and is sued notice Under Section 36(2) of the Central Excises and Salt Act, 1944, as it stood at that time on 15th November, 1974. In that notice addressed to the petitioner company it was alleged that on examination of the records of the case, the Central Government was tentatively of the view that the Appellate Collector of Central Excise had ignored various facts in coming to its decision.
5. After considering the reply given by the petitioner on 26th March, 1975 by an order dated 30th September, 1976 the Government of India set aside the aforesaid order dated 30th November, 1973 passed by the Appellate Collector and directed the Appellate Collector to decide the case afresh after considing the various documents and/or evidence produced.
6. Thereupon, the Appellate Collector after examining the various documents produced by the petitioner once again passed an order holding that M.G. Poster Papers manufactured by the petitioner had to be classified as printing and writing paper - 32 appeals were disposed of by the aforesaid orders and directions were given for grant of consequential reliefs to the petitioner. The Government of India once again issued a notice Under Section 36(2) for revising the order dated 9th June, 1980 passed by the Appellate Collector. This notice dated 04-12-1980 is the subject matter of this writ petition.
6A. It has been urged by the petitioner that the Government of India is approaching the case with a closed mind. The order passed by the Appellate Collector has already been reviewed once by the Government of India. Therefore, the petitioner has no remedy except by way of writ petition in this case. It has been urged that the facts and documents overwhelmingly support the case of the petitioner. My attention was invited to various documents including the report of the Tariff Commission, 1959, Trade Notes issued by J.C.C.I., also notices issued by D.G.S.D. Rate Contracts, I.S.I. Publications and other documents issued by the Government of India and various other State Governments to show that poster papers were consistently regarded as printing/writing papers.
7. On behalf of the respondents, it has been urged that various companies like Lipton India Limited, Hindusthan Pilkinton Glass Works, Paper and Board Supplying Agencies, Cardboard Manufacturing Company of Calcutta, have all stated that poster papers are used as wrapping papers. It has further been stated that the Appellate Collector has failed to amend the evidence before it. The poster papers were glazed on one side and rought on other side. It was used as packing for match sticks and various other purposes particulars of which have been given in the show cause notice of the Government. It has been urged that although some quantities of poster papers were used for printing, poster papers were meant to be used as wrapping because of the strength of the paper and in fact, it was extensively used for wrapping and packaging by various commercial firms.
8. Both the sides are agreed that the classification should be made on the actual use made of the poster paper and according to the practice of the trade. Although the auestion is not a pure question of fact, facts have to be gone into to decide whether poster papers are classifiable as printing/writing paper or. packing/wrapping paper.
9. The rule nisi was issued on 22-5-1981 and an interim order was passed. The matter is pending in this Court since then. Major Amendments have been made in the Central Excises and Salt Act, 1944 in the mean time. Chapter VI which deals with Appeals has been introduced in the Act. By virtue of Section 35P(2) every proceeding, which was pending before the Central Government Under Section 36, stands transferred to the Appellate Tribunal which has been set up to hear appeals from orders passed by the Collector of Central Excise or the Collector (Appeals). By virtue of these provisions, the proceeding that was pending before the Central Government Under Section 36 now stands transferred to the Appellate Tribunal.
10. In my opinion, it will not be proper to apprise the evidence and decide the case in the writ jurisdiction while the appeal is pending before the Tribunal.
11. The petitioner has contended that the matter has been pending before the various appellate authorities and revisional authorities for a long time and this Court should decide the case once for all.
12. I am, however, of the view that since the appeal is pending before the Triburfal, whether by operation of law or otherwise, it will not be proper for the writ Court to intervene in this matter. Moreover, the controversy raised in this case is not a pure question of law but a question that has to be answered on appreciation of evidence. Therefore, this writ petition must fail on this preliminary ground.
13. The rule is discharged. The interim order is vacated. Since the matter is pending for a long time, the Tribunal is directed to hear and determine this case as expeditiously as possible. The parties will be at liberty to apply to the Tribunal for an early hearing.
14. It is made clear that all the points in controversy are left open to be decided by the Tribunal.
15. There will be no order as to costs.