Judgement

HEGDE, J.: These appeals by special leave arise from the orders made by the Government of India, Ministry of Finance, Department of Revenue, New Delhi on October 5, 1963, in Central Excise Revision Applications Nos. 720 to 725 of 1963. Herein a common question of law arises for decision and that is whether "M. G. Poster paper" manufactured by the appellant-company is a "printing and writing paper" chargeable under item 17(3) of the First Schedule to the Central Excises and Salt Act, 1944 (No. 1 of 1944), hereinafter referred to as the Act or whether it is "packing and wrapping paper" chargeable under item 17(4) of the aforementioned Schedule.

2. The appellant is a public limited company incorporated under the Indian Companies Act, 1913, and an "existing company" within the meaning of the Indian Companies Act, 1956. It is carrying on business, inter alia, of manufacturing and sale of various kinds of paper at its factory at Birjrajnagar in the district of Sambalpur in the State of Orissa. In particular, it manufactures "packing and wrapping paper", "printing an writing paper" and "machine glazed paper popularly known a "M. G. Poster paper". Upto February 28, 1961, the date on which the Finance Bill of that year was introduced in Parliament, "printing and writing paper" and "packing and wrapping paper" were subject to excise duty at the rate of 22 np per kilogram, though the former was chargeable under item 17 (3) and the latter under item 17 (4) of the First Schedule to the Act. The Finance Act of 1961 raised the excise duty payable under item 17 (4) to 35 up per kilogram with effect from March 1, 1961. From March 1, 1961, to August 1, 1961, the excise officers levied duty on "M. G. Poster paper under item 17 (3) i. e., at the rate of 22 np per Kilogram. In other words during that period the excise authorities treated "M. G. Poster paper" as "printing and writing paper". Subsequently, the excise authorities began to treat this paper as "packing and wrapping paper" and insisted on the appel ant paying duty thereon under item 17 (4). The appellant paid duty at that rate under protest and thereafter applied to the Assistant Collector for refund on the ground that the duty on that paper should have been levied under Item 17(3) and consequently the duty collected was in excess of that leviable under law. The Assistant Collector rejected that claim. Consequently, the appellant went up in appeal to the Collector of Central Excise, who rejected its appeal. Then the matter was taken up in revision to the Government of India. The Government declined to interfere with the orders of the Collector.

3. The orders made by the Collector in the various appeals and those made by the Government in the revisional applications are similar in all the cases. Therefore it would be sufficient if we refer only to those made in one of the cases, viz., in CA 659 of 1965.

4. The contention of the appellant before the Assistant Collector, the Collector as well as the Central Government was that "M. G. Poster paper is a "printing and writing paper" and it was considered as such, by the Indian Tariff Board, in the Tariff Commission Report published in 1959 and in the specifications published by the Indian Standards Institution, Further it was dealt as "printing and writing paper" in the annual rate contracts entered into between the appellant and the Government of India for supply of papers and paper-boards to the Government. This contention does not appear to have been examined either by the Collector or by the Central Government. The Collector rejected the appeals of the appellant with these observations:-

"The crucial point in appeal is whether the paper declared as M. G. Poster paper should be assessed as packing and wrapping paper, other sorts under tariff item No. 17 (4) or as printing and writing paper, other sorts under tariff item 17 (3).

"The Central Board of Revenue have already made it clear that all types of poster paper of whatever