B.C. Mitra, J.
1. A Company known as New Central Jute Mills Co, Ltd. owns and runs a factory by the name of Sahu Chemicals and Fertilisers at Varanasi. The appellant was the selling agent of the products of this Company including muriate of ammonia and fertiliser. By a notification dated May 28, 1962, Ammonia utilised in the manufacture of fertiliser is exempted, with effect from April 24, 1962, from so much of excise duty as is in excess of Rs. 25/- per metric tonne. The standard rate of duty of ammonia is Rs. 125/- per metric tonne.
2. The Excise authorities brought to the notice of Sahu Chemicals and Fertilisers that muriate was distinct from fertiliser and that ammonia used in the manufacture of muriate of ammonia was not entitled to concessional rate and was subject to the standard rate of Rs. 125/- per metric tonne.
3. According to the management of Sahu Chemicals and Fertilisers, there was no separate process in the manufacture of muriate of ammonia. The owners of the factory contended that they were producers of fertilisers and the production of muriate was the result of accidents and vagaries of production connected with the manufacture of fertiliser. According to the Excise authorities, on the other hand, muriate of ammonia was obtained in the said factory by a process of manufacture different from that for the manufacture of fertiliser. The Respondent No. 1 claims to have come into possession of information that there were a number of relevant papers, books and documents in the possession of the appellant which were secreted in its Calcutta office. According to Respondent No. 1 again, these papers, books and documents would establish that muriate of ammonia was produced in the said factory in pursuance of a definite programme and that the entries in the books will further show that the contention of New Central Jute Mills Co. Ltd., that there was no separate process in the manufacture of muriate of ammonia was false. These books, it is further alleged, would show that payment of excise duty has been evaded, and further that information will be available from such books regarding Other parties connected with the appellant's transaction with the New Central Jute Mills Co. Ltd. who are involved in the evasion of excise duty. In these facts, the Respondent No. 1 issued an authorisation for search and seizure of the documents and books at the appellant's premises and pursuant to such authorisation, search and seizure took place and the search was conducted at the appellant's business premises at No. 18A, Braboume Road, Calcutta, on May 11, 1968. Various books, documents and papers, which would be useful for the proceedings under the Central Excises and Salt Act and the Central Excise Rules, were seized.
4. Thereafter the appellant moved this Court under Article 226 of the Constitution, and obtained a Rule Nisi, and an interim order directing that the seized documents including all books and papers should be kept forthwith in steel boxes and these boxes should be sealed and the respondents should not examine or look into the books until further orders. Liberty was given to the respondents to apply for variation of the interim order upon notice to the appellant. Pursuant to this liberty, the Respondent 1 moved an application for variation of the interim order to enable the Assistant Collector of Central Excise, Calcutta, to examine and inspect the books and documents, a list of which was annexed to the petition. On this application, an order was made on December 3, 1969 by which it was provided that the Assistant Collector of Central Excise, Calcutta III, and Ahibhusan Chatterjee, Superintendent of Central Excise, should be at liberty to take inspection of the seized documents; but it was also provided that the respondents should not proceed against the applicants on the basis of such inspection. It was further ordered that the variation would not prevent the respondents from proceeding against other parties. There were certain other directions that inspection should be taken in the presence of the appellant and upon notice to it. This appeal is directed against this order.
5. In effect and in substance, the order which is the subject-matter of challenge in this appeal is one for inspection of certain documents which have been seized by the respondents. The question, therefore, is whether such an order is appealable. Mr. Goho, learned counsel for the appellant, contended that the order was a variation or modification of the original order of injunction made on May 16, 1968, by which the respondents were restrained from examining or looking into the books until further orders. It was argued that since the order under appeal has the effect of affecting the order of injunction, it should be held to be an appealable order. It was also submitted that the order was an order under Order 39, Rule 4 of the Code of Civil Procedure and as such, it was appealable under Order 43, Rule 1 (r) of the Civil Procedure Code.
6. It seems to us that although the order partly has the effect of varying the order of injunction made on May 16, 196S, in effect and in substance it is an order for inspection of documents seized. All that the order provides is that inspection may be taken of the documents, but the respondents are restrained from proceeding against the appellant on the basis of such inspection. Liberty has been given to them to proceed against others on the materials obtained on such inspection. Therefore, the order for inspection does not in any manner prejudice or affect the appellant.
7. Counsel for the appellant next contended that it was a judgment within the meaning of Clause 15 of the Letters Patent, inasmuch as the respondents have been given the right to inspect the documents, and one of the prayers in the Writ Petition was for an injunction restraining such inspection. Therefore, he submitted that the claim to inspect documents was one of the disputes in the main Rule in support of this contention, reliance was placed on the Bench decision of this Court reported in : AIR1960Cal582 . In that case, an injunction was issued restraining issue of a cinema licence pending disposal of the Rule. This injunction was varied and modified by an order which provided that the injunction should be dissolved except that no permanent licence should be issued until disposal of the Rule but a temporary licence might be granted. The issue of a licence itself was the subject-matter of an order of injunction and it was that order of injunction which was dissolved by directing the issue of a temporary licence. It was, therefore, held that it was a judgment within the meaning of Clause 15 of the Letters Patent. We do not think that this decision is of any assistance to the appellant.
8. Mr. Bhabra, counsel for the Respondents submitted, on the other hand, that the order under appeal was a plain order for inspection and nothing more. He argued that such an order was not appealable. In support of this contention he relied on a decision in (1872) 9 Bom HCR 398. In that case, an order for inspection of books of account was made. It was held that such an order was not appealable. Reliance was next placed by Mr. Bhabra on another decision of the Bombay High Court in (1909) 11 Bom LR 248 in which it was held that no appeal lay from an interlocutory order allowing free and complete inspection of documents. Reliance was next placed on a decision of this Court in : AIR1961Cal578 . This decision is an authority for the proposition that the power of search and seizure is an overriding power of the State for the protection of social security and that power is regulated by law. The question in that case was whether a search and seizure was an interference with the right to hold property. Counsel for the respondents also relied on a decision of this Court in (1971) 75 Cal WN 233. In that case it was held that an order refusing ad interim injunction under Order 39, Rule 1 or Rule 2 was a final order and was appealable. This decision has no application to the facts in this case because we are not concerned with an order refusing an injunction but with an order varying or modifying an order of injunction for the purpose of giving inspection to certain documents.
9. In our view, the order under appeal is only an order for inspection of the documents seized. Although to the extent that inspection has been allowed, the order is a variation of the interim order issued, such variation does not, in our view, make the order any the less an order for inspection of documents. Such an order, in our view, is not an appealable order. It is to be noticed that in the Rule petition itself there was a prayer for injunction restraining the respondents from examining or looking into the books and documents seized by the respondents. An order for injunction was made by the Court when the Rule Nisi was issued. Thereafter the respondents made an application for variation of the order of injunction and it is on that application that the order under appeal was made.
10. We cannot also accept the contention of counsel for the appellant that the order is a judgment within the meaning of Clause 15 of the Letters Patent. The order does not dispose of the controversy between the parties, nor does it affect the merit of the question between the parties by determining any right or liability. Although there is a prayer in the writ petition for an injunction restraining the appellants, their servants and agents from examining or looking into any of the seized documents until disposal of the application, that prayer is plainly a prayer for interim relief. The main and the real controversy between the parties, as appears from prayers (a) and (b) of the writ petition, is the issue of an authorisation dated May 11, 1968 for search and seizure of books and documents. The prayer for ad interim injunction until disposal of the application is no part of the controversy between the parties and the order under appeal cannot be said to have affected the controversy between the parties as pleaded in the writ petition.
11. There is one other matter to be considered which seems to us to have a good deal of bearing on this appeal. Counsel for the respondents relied on a decision of the Supreme Court in the New Central Jute Mills Co. Ltd. v. Asst. Collector of Central Excise, : 1978(2)ELT393(SC) . In that case, the same questions were involved and the appellant was New Central Jute Mills Co. Ltd. An order for search and seizure of books and documents was issued upon information claimed to have been received by the Excise authorities that ammonia made for manufacture of fertiliser, on which the reduced duty of Rs. 25/- per metric tonne was paid as against the standard duty of Rs. 125/- per metric tonne, was diverted to other users. The appellant challenged the order for search and seizure as also the seizure itself on various grounds viz., (1) that Section 12 of the Central Excises and Salt Act 1944 was void as the powers delegated to the Central Government were excessive; (2) that the Sea Customs Act 1878 having been repealed, it was not open to the Central Government under Section 12 of the Act to apply Section 105(1) of the Customs Act, 1962; (3) that the search and seizure made by the respondents were not in accordance with Section 105 of the Customs Act 1962. All these contentions, however, were rejected by the Supreme Court. Although the question of validity or legality of the search and seizure is not a matter for consideration in this appeal, the decision of the Supreme Court mentioned above is of considerable importance in this appeal for another reason. The appellant before the Supreme Court was New Central Jute Mills Co. Ltd. and the appellant before us is, according to the affidavit in reply affirmed by Lakshmi Narayan Burman on May 12, 1969, the selling agent of some other products of the same New Central Jute Mills Co. Ltd. The facts involved in the appeal before the Supreme Court are identical with the facts in the writ petition out of which this appeal arises. Two of the questions canvassed before the Supreme Court by the New Central Jute Mills Co. Ltd., are the same as the two questions raised in the appellant's writ petition in this Court. One of the grounds raised by the appellant in the writ petition is that Section 12 of the Central Excises and Salt Act, 1944 is ultra vires the Central Legislature on account of excessive and unauthorised delegation of essential legislative functions. This ground is the same as the first ground urged before the Supreme Court in the case noticed earlier. The second common ground is that the issue of the authorization for search and seizure was without jurisdiction and null and void. The Supreme Court in dismissing the appeal of New Central Jute Mills Co. Ltd., rejected both these contentions.
12. We are not concerned in this appeal with the merits of the appellant's writ petition which is now pending and we refrain from expressing any views on them. But in considering if there are prima facie grounds for interfering with the order varying the order of injunction, we cannot overlook or ignore the impact of the decision o the Supreme Court on the appellant's pending writ petition. The challenge thrown by the New Central Jute Mills Co. Ltd., : 1978(2)ELT393(SC) to the validity of the authorization has been rejected by the Supreme Court as mentioned earlier and to that extent, at any rate, the contentions advanced by the appellant in the writ petition now pending in the trial Court must fail. It is also to be noticed that although the writ petition appears to us to he ready for hearing since May 12, 1969, instead of taking steps for expeditious hearing of the rule itself the appellant has chosen to prefer this appeal against the interim order varying the order of injunction.
13. Keeping in mind the decision of the Supreme Court it seems to us that it cannot he said that the appellant is entitled to contend that the order under appeal should be set aside. In our view the appellant has failed to make out any grounds for interfering with the order under appeal. We should also notice that in the appeal before the Supreme Court the appellant was New Central Jute Mills Co. Ltd., : 1978(2)ELT393(SC) , who is the principal of the appellant before us. It appears to us that the first attempt to stall the proceedings by challenging the authorization on various grounds having failed, the appellant before us is now making a second attempt for the same purpose. We see no reason to interfere with the order of the Court below.
14. We should also notice that the order varying the interim order by the trial Court, which is the subject-matter of appeal, is a discretionary order and the Court below in making the order has taken into consideration the rights of the various parties and has fully protected the Appellant by providing that no steps should be taken against the appellant on materials obtained upon inspection of the books and documents. In our view, both on the grounds that the appellant has no prima facie right to the variation sought for and also on the ground that the order is a discretionary order this appeal must fail and is accordingly dismissed with costs. All interim orders are vacated.
P.B. Mukharji, C.J.
15. I agree.