' SABIHUDDIN AHMED, J.---This appeal arises from an order of a learned Single Judge dated 29-7- 1998 passed on an application for interim relief preferred by the appellants/plaintiffs in Suit No,561 of 1998 whereby a notice from the respondent No,3 directing the appellants to furnish information in respect of sale of tea bags for the period between 1-7-1997 to 31-1-1998 effected by the appellants was sought.
2. Briefly the relevant facts appear to be that the appellants are engaged in import and marketing of tea and one of the modes in which tea is marketed to customers is through packing of tea imo filter bags known as tea bags. The tea (falling under heading 9.2 of the First Schedule w the Central Excises Act) and the filter paper, falling under heading 4823.2000 (filter paper and paper board) imported by the appellants is exempt from Excise duty under different notifications. However, according to the appellant for the first time on 12-12-1997 the appellants received a notice from a Senior Intelligence Officer in the office of the respondent No,3 stating that he was conducting an enquiry under section 14 of the Central Excises Act and calling upon them to produce books and documents showing production, clearance and value of bags meant for packing of tea (tea bags) manufactured by them, proof of payment of Central Excise duty if any, on the above item and description of manufacturing process for the bags. Subsequently a contravention report was forwarded to the Additional Collector of Central Excise Karachi alleging that tea bags were classifiable under Item No,4819.4000 of the First Schedule to the Central Excises Act and liable to Central Excise duty at the rate of 5% ad valorem. It was alleged that manufacturers of such tea bags were not taking into consideration the aforesaid requirements of law and avoiding payment of excise duty. In their reply to the aforesaid notice dated 25-12-1997 the appellants contended that they were not "manufacturing" tea bags and neither excise duty was payable nor could any information be sought for levying of such duty. The respondents nevertheless persisted in issuing subsequent notices whereupon the appellants filed the suit for declaration that the aforesaid notices were ultra vires the powers of the respondents and a permanent injunction seeking to restrain them from issuing further notices or taking coercive measures towards collection of excise duty.
3. The plaint was accompanied by an application for interim relief seeking to restrain the respondents from acting on the aforesaid notices or taking any measure pursuant thereto. The application, after hearing the counsel for the appellants and the Standing Counsel to the Federal Government was disposed of by a learned Single Judge of this Court in the following terms:
(a) That the plaintiff shall furnish the information called for by defendants vide letter dated 12-12- 1997 within a maximum period of 30 days from the date of this order.
(b) That on receipt of the information, as above, the defendants shall, after providing an opportunity of being heard to the plaintiff, determine the question as to whether the Tea Bags manufactured by the plaintiffs are excisable goods.
(c) Failure of the plaintiff to furnish the information as per (a) above would entail penal consequences as contemplated under the Act.
4. Assailing the above order Mr. Makhdoom Ali Khan learned counsel for the appellants argued that:
(i) That section 14 of the Central Excises Act which empowered excise officials to seek information and hold enquiries did not confer unfettered powers upon such officers to conduct roving enquiries into the affairs of the appellants and only allowed such enquiries which were necessary for the purpose of the Act.
(ii) That only such enquiries could be considered valid and justifiable which were designed to facilitate levy and collection of Central Excise duty payable under the Act.
(iii) That excise duty was chargeable on 'excisable goods produced or manufactured' which only meant such goods which were independently vendible in the market.
(iv) The bags .Used by the appellants not carrying any independent utility or vendibility in the market could not be treated as excisable goods so as to enable conduct of enquiry under section 14 pertaining to their sale:
5. Mr. Mushir Alam learned standing counsel appearing for the respondents on the other hand argued that:
(i) That admittedly tea bags in question were covered by heading 4819.4000 of the First Schedule to the Central Excises Act and were, therefore, excisable goods for all purposes of the Act.
(ii) That the suit itself was not maintainable under section z40 of the Central Excises Act and the appellants were not entitled to the discretion of interim injunction even at the appellant stage.
6. Prima facie Mr. Makhdoom Ali Khan appears to be correct in asserting that section 14 of the Act does not enable Central Excises Officers to conduct a roving enquiry into the business affairs of the appellants who may, for various reasons, not be willing to disclose such information to unconcerned people. It goes without saying that the authority of all public functionaries is circumscribed by law. Nevertheless the crucial question appears to be whether the contemplated enquiry could be treated as one being made for the purposes of the Act. In this conk-at learned counsel argued that an enquiry for the purposes of the Act must be one which was designed to facilitate levy and collection of Excise duty in terms of the charging section (section 3) which reads as under: "3. Duties specified in the First Schedule to be levied.--There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods, produced or manufactured in Pakistan or imported into Pakistan and on such goods, as the Federal Government may by notification in the official Gazette, specify as are produced or manufactured in the non-tariff areas and are brought to the tariff areas, and on all excisable services, provided or rendered, in Pakistan, as, and at the rates set forth in the First Schedule."
7. Mr. Makhdoom Ali Khan with his usual candor conceded that under section 14 of the Act Central Excise officials do have the powers to conduct and enquiry and seek an information for the purposes of determining any of the incidents which would attract levy of excise duty. He nevertheless argued that admittedly the petitioners were not engaged in the manufacture of tea and the tea sold by them not being a manufactured product in terms of section 2(25) of the Act, the process of its packing into bags could also not be treated as 'manufacture' to attract the levy of duty. As such the notice as issued under section 14 and the enquiries proposed to be conducted or information sought were patently ultra vires powers of the defendants and could be restrained through injunction. For the above purpose Mr. Khan relied upon the definition of the expression "manufacture' in section 2(25) of the Act which reads as under:-- "(25) 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product and any process of remanufacture, remarking, reconditioning or repair and the process of packing or repacking such product; and, in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biros, cigarette and pipe or Hookah tobacco, chewing tobacco or snuff, and the word 'manufacturer' shall be construed accordingly and shall include not only a person who employs hired labor in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account if those goods are intended for sale and in respect of gold and silver and products thereof, also any person dealing in gold and silver and products thereof, who, whether or not he carries out any process of manufacture himself or through his employees or relatives, gets any process of manufacture carried out on his behalf by any person who is not in his employ, and any person so dealing in gold and silver and products thereof shall be deemed to have manufactured for all purposes of this Act, all products of gold or silver in which he deals in any capacity whatever."
8. On the other hand Mr. Musheer Alam learned Standing Counsel while conceding that no duty could be imposed on tea of filter paper argued that the bag made by the appellants from the filtered paper imported by them underwent a process of manufacture in terms of section 2(25) of the Act and were subject to the incident of Excise Duty under Item No,4819.4000 i,e, "other sacks and bags" and were leviable to excise duty at the rate of 5% ad valoram. Replying to the aforesaid contention Mr. Makhdoom Ali Khan argued that the expression "manufacture" as defined in the Act implied a process whereby goods or material underwent some processes resulting in the creation of a marketable commodity. The appellants were only making tea bags and the bags without the tea contents had no marketable value. Moreover, apart from the question whether the goods produced were manufactured they were also required to answer to the description of "excisable goods" as defined in section 2(19) of the Act. Learned counsel relied upon inter alia the cases of Civil and Military Process Ltd. And others v. Pakistan 1985 CLC 1021, Trust Ceramic Industries v.
Deputy Collector-II, Central Excise 1991 CLC 1923 and Assistant Collector of Central Excise v. Orient Straw Board and Paper Mills PLD 1991 SC 992 in support of the contention that the words "manufacture" and "excisable goods" as defined in the Act and implied that such goods could be sold in the market. He argued that the "bags" said to be manufactured by the appellant were not independently vendible and could not be treated as "manufactured" or "excisable" goods.
9. In all fairness to the learned counsel, certain observations in the above judgments do prima facie lend support to his contention. With profound respect, however, in none of the cases it was alleged that the material used by the assessee was properly classified under one head of the First Schedule to the Central Excises Act and after certain processes (whether amounting to manufacture or not) was classifiable under another heading. Admittedly in the present case appellants claimed exemption from payment of excise duty on imported filter paper on the ground that it fell under Item 4823.2000 of the said Schedule. Bags (in which tea is sold) are apparently classifiable under heading 4819.4000. Therefore, the contention of Mr. Musheer Alam to the effect that they are separate goods as distinguished from filter paper is not altogether without force. The question whether they are prepared as consequence of a manufacturing process is indeed one which the Central Excise Authorities are competent to determine for the purpose of deciding whether any duty is livable.
10. As regards the question whether such bags constitute "excisable goods" the following observations from the judgment of this Court in Trust Ceramic Industries v. Deputy Collector-II, (1991. CLC 1923) do, to some extent lend support to Mr. Khan's contention: "The word 'excisable goods' has been defined in section 2(d) as goods specified in the First Schedule being subject to duty of excise and include salt. The word 'goods' has not been defined.
Therefore, the ordinary dictionary meaning should be taken into consideration. In Orient Straw Board and Paper Mills Ltd. v. Assistant Collector of Central Excise and Land Customs PLD 1985 Kar.126 it was held that if by any process a marketable goods is produced the levy of duty is attracted. Similar view was taken in Union of India v. Additional Commissioner AIR 1963 SC 791.
Considering the definition of term 'excisable goods' and the charging section it is clear that duty can be levied on goods which can be sold in the market."
11. It may nevertheless be observed that the definition of excisable goods has been radically altered through the Finance Act, 1995 and now read as under: "2(19). Excisable goods means goods specified in the First Schedule and includes goods manufactured or produced in non-tariff area and brought for consumption to tariff area."
12. In view of the above-amended definition it is apparent that as long as the goods in question have been specified in the First Schedule they cannot be excluded from the definition of excisable goods, though the question whether they can be subjected to levy of excise depends on the terms of the charging section. Moreover, bags have been described separately and distinctly under a heading in the Schedule which forms part of the statute. It is extremely difficult to accept the contention that they cannot be treated as goods at all by reference to any dictionary meaning.
What is most important, however, is the fact that even in the above-noted case after declaring the impugned orders of Central Excise Authorities to be illegal, their Lordships, remanded the case to such authority for determination whether the goods in question were vendible. It obviously follows that even the power to determine the vendibility of the goods for the purpose of deciding livability of duty vests in Central Excise Authorities and any information sought by them for doing so cannot be treated as ultra vires their powers. The above case, therefore, is also of little help to Mr. Makhdoom Ali Khan.
13. Section 40 of the Central Excises and Salt Act bars jurisdiction of a Civil Court to set aside or modify an order passed under this Act. Indeed the jurisdiction of Civil Courts to entertain suit against actions which are mala fide or ultra vires the powers conferred by the Act cannot be ousted. Nevertheless, without expressing a final opinion we are tentatively of the view that in the instant case the impugned order cannot be said to be plainly ultra vires powers of Central Excise Authorities. Moreover, the appellant has not been able to make out a case for grant of temporary injunction particularly when only information is being obtained and no substantial prejudice is being caused to the appellant. We, therefore, find the impugned order to be unexceptionable and dismiss this appeal in limine. In case the information directed to be furnished has not been furnished so far the appellants shall do so within a month from today without entailing penal consequences. The appeal as well as C.M.A.No,1256 of 1998 stand disposed of.