1991 PLP 456 (CLC)

(e) Sugar, other than sugar manufactured from beet by the factories in the North‑West Frontier Province, manufactured by a factory in a financial year which exceeds the average production of sugar, other than sugar manufactured from beet by the factories in the N.‑W.F.P. for the preceding two financial years. (f) Sugar produced from beet during the financial years 1985‑86 to 1989‑90 by the sugar mills located in the N.‑W.F.P. (g) New sugar mills, which commenced operation during 1982‑83 crushing season or thereafter or which may commence operation hereafter from payment of fifty per cent of central excise duty leviable on their production of first two years commencing from the date of operation. The new sugar mills which commenced production during 1982‑83 and 1983‑84 and which have already paid excise duty on the first two years of their production of sugar will be entitled to refund/adjustment of duty in such a manner that fifty per cent of the total amount of such refund adjustment will be made against the duty payable by them during 1985‑86 and fifty per cent against the duty due from them during 1988‑89." Both the old and new Sugar Mills continued to enjoy exemption from payment of central excise duty on their production of sugar as permitted by clause (e) and clause (g) in column No.2 of the Notification reproduced hereinabove till the officers of the Customs and Central Excise Department informed the petitioners that such exemptions will no more be available to them in view of the statement made in Budget Speech for the year 1989‑

90. The Superintendent, Customs and Central Excise, Circle‑1, Hyderabad, addressed a letter dated 5‑6‑1989 reproduced below to M/s. Bawani Sugar Mills Limited, (petitioners in C.P. No. D‑686/89), M/s. Mirpurkhas Sugar Mills Limited (petitioners in C.P. No.D‑687/89), Mehran Sugar Mills Ltd. (petitioners in CP No. D‑706/89), M/s. Faran Sugar Mills Ltd. (petitioners in C.P. No.D 691/1989), M/s. Pangrio Sugar Mills Limited (petitioners in C.P. No.D 713/1989) M/s. Sindh Abadgar Sugar Mills Limited (petitioners in C.P. No. D 739/1989), Messrs Fauji Sugar Mills limited Tando Mohammad Khan and Messrs Fauji Sugar Mills Limited, Khoski (petitioners in C.P. No.D‑742/1989), M/s. Army Welfare Sugar Mills Limited Badin (petitioners in C.P. No.D 821/1989), M/s. Bawani Sugar Mills Limited (petitioners in C.P. No. D 846/1989), and Messrs Dewan Sugar Mills Limited (petitioners in C.P. No.D 322/1990: "Subject:‑Clearance of Sugar on Central Excise Duty. According to the Budget Speech for the year 198090 the exemption of CE; duty on Cane Sugar for the older as well as for the new Mills has been withdrawn with immediate effect. Therefore, the entire stock of sugar available in the Factory is now subject to Central Excise Duty at 2.15 per Kg. This should be noted for strict compliance. Sd/‑ SUPERINTENDENT CUSTOMS AND CENTRAL EXCISE, CIRCLE‑1, HYDERABAD." The Inspector, Customs and Central Excise I/C, Al‑Noor Sugar Mills Limited, Moro addressed a letter dated 7‑7‑1989, to the General Manager, Messrs Al‑Noor Sugar Mills Limited (petitioners in C.P: No.D‑759/1989), intimating them that exemptions of Central Excise Duty on cane sugar for older as well as New Sugar Mills have been withdrawn with immediate effect from 3‑6‑1989. The entire stock of sugar available in the Factory will therefore be subject to Central Excise Duty at Rs.2.15 per Kg. Similar communication was addressed by Superintendent, Customs and Central Excise, Hyderabad, to M/s. Shah Murad Sugar Mills Ltd. (petitioners in C.P. No.No.D‑760/89). The Inspector of Customs and Excise I/C, M/s. Habib Sugar Mills Ltd. Nawabshah by a letter dated 1‑8‑1989 addressed to M/s. Habib Sugar Mills Limited (petitioners in C.P. No. D‑707/1989), enclosing a photostat copy of SRO No. 555 (1)/1989 dated 3‑6‑1989 whereby facility of Duty free clearance of Sugar exceeding 2 years average production was withdrawn. Out of the new Sugar Mills Messrs Army Welfare Sugar Mills Badin (petitioners in C.P. No. D‑437/1989), and M/s. Faran Sugar Mills Limited ('petitioners in CP No.D‑468/89) had commenced production of sugar with effect from 28‑2‑1984 and 1983‑84 respectively and had actually obtained refund/adjustment of the central excise duty already paid by them for the production of sugar for the first two years in terms of notification bearing S R O No. 814 (1)/85 dated 29‑8‑1985. The Collector of Customs and Central Excise, Hyderabad, addressed them the following letter on 18‑4‑1989:‑-- "Under the Ministry of Finance Notification No. S R O 814 (1)/1985, dated 29th August 1985 issued under Section 12‑A of the Central Excises and Salt Act, 1944, you were granted refund or adjustment of excise duty amounting to Rs.3, 89,15, 645.00 (rupees three crores eighty‑nine lacs fifteen thousand and six hundred forty‑five,) according to the statement attached. In view of the settled law that a notification cannot have retrospective effect, Notification No.SRO 814 (1)/1985 dated the 29th August, 1985 was void ab initio in so far as it purported to grant exemption retrospectively. In view of the legal position stated above, the refund/adjustment granted to you was without legal authority and it has, therefore, been decided to call upon you under rule 10 of the Central Excise Rules, 1944, to pay the aforesaid amount of duty refunded to you or adjusted against the duty payable by you. You are, therefore, requested to make the payment within 15 days of the delivery of this notice to you failing which action will be taken to recover the aforesaid amount. (Sd) (Syed Ejaz Ali Shah), Collector." The Superintendent, Customs, Central and Excise Circle‑1, Gharo, intimated M/s. Sanghar Sugar Mills Limited (petitioners in C.P. No. D 668/1989), M/s. Al‑Asif Sugar Mills Limned (petitioners in C.P. No.D‑743/1989 and C.P. No. D‑51/1990) and M/s. Dewan Sugar Mills Limited (petitioners in C.P. No. D‑741/1989) that exemptions granted earlier on cane sugar both in case of older and new Sugar Mills had been withdrawn with immediate effect and the entire stock of sugar available in the factory shall be subjected to central excise duty at the rate of Rs.2.15 per Kg. The Federal Government in order to give effect to the measures announced in the Budget Speech for the year 1989‑90 published two Notifications bearing S R O No. 555 (1)/89 and SRO No. 556 (1)/1989 in the Gazette of Pakistan Extraordinary Issue of 3rd June, 1989 (Part‑I1). The Federal Government by SRO No.555(1)/1989 omitted entries in clause (c) in column 2 and 3 against the item No.02.02 of Notification No. S R 0 555 (1) 1979 dated 28th June, 1979. By the second SRO No. 556 (1)/1989 published on the same date Federal Government rescinded Notification No.SRO 814(1)/1985 dated 29th August, 1985, with immediate effect. The petitioners being aggrieved by the decision of the Officers of the Collectorate of Customs and Central Excise mentioned above and the two Notifications issued by the Federal Government mentioned in preceding paragraph have filed these petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan. M/s. Al‑Noor Sugar Mills (petitioners in C.P. No.D‑79/89); M/s Consolidated Sugar Mills (C.P. No. D‑669/89); M/s. Bawany Sugar Mills (CP No. D‑686/89); M/s Mirpur Khas Sugar Mills (C.P. No. D‑687/89); M/s. Faran Sugar Mills (C.P. No.693/89); M/s. Pangrio Sugar Mills (C.P. No. D‑713/89); M/s. Sindh Abadgar Sugar Mills (C.P. No.D‑793/89); M/s. Fauji Sugar Mills (C.P. No.D‑742/89); M/s. Shah Murad Sugar Mills (C.P. No.D‑760/89); M/s. Habib Sugar Mills (C.P. No.D‑767/89); M/s. Army Welfare Sugar Mills (C.P. No. D‑821/89); M/s. Al‑Asif Sugar Mills (C.P. No. D‑51/90); M/s. Dewan Sugar Mills (C.P. No. D‑322/90); M/s. Mehran Sugar Mills (C.P. No. D‑706/89); and M/s. Bawany Sugar Mills (C.P. No. D‑846/89) are the old sugar mills who had enjoyed exemption or claim exemption from payment of total central excise duty on their production of such quantities of sugar that was produced by them in a financial year in excess of the average production of two previous financial years in terms of clause (e) of S R O No. 555 (1)/79 as amended and, reproduced hereinabove. The following new Sugar Mills got the advantage of 50% concession in payment of Central Excise Duty on the production of sugar for first two years, commencing from their respective dates of production in terms of para (g) in the notification reproduced hereinabove:‑ S.No. Name of the Mill Date of commencement of production

1. M/s Army Welfare Sugar Mills (C.P. No. D‑437/89) 28‑2‑1984

2. M/s Faran Sugar Mills (C.P. No.D‑468/89) 1983‑84

3. M/s Sanghar Sugar Mills (C.P. No.D‑668/89) 18‑1‑1988

4. M/s Dewam Sugar Mills (C.P. No.D‑741/89) 28‑11‑1987

5. M/s Al‑Asif Sugar Mills (C.P. No. D‑743/89) 27‑10‑1987 The contentions raised by learned, counsel appearing for the petitioner, are summarised as follows:‑ (1) The exemption from payment of Central Excise Duty on such quantities of Sugar manufactured in a financial year in excess of average quantity of Sugar produced by them during two previous financial years as permitted in case of Old Sugar Mills in terms of SRO No.555 (1)/79 as amended could not be withdrawn by subsequent notification as such petitioners had acquired a vested right. In any case Central Excise Duty is charged on manufacture of goods. For the purpose of levy of such duty date of manufacture of sugar is the relevant and not the date when the Sugar is taken out of the Mills. According to them Sugar manufactured before 3rd June 1989 which was exempted from the payment of duty and was stored in the factories will continue to enjoy such exemption. Notification of 1989 cannot therefore be applied retrospectively.

2. In case of new Sugar Mills i.e. such Mills that commenced production of Sugar from 19,8'2‑83 and thereafter were allowed exemption from the payment of 50% of Central Excise Duty on their production of Sugar for first two years calculated from the date of production by SILO No.814 (1)/85. Such exemption cannot be withdrawn before the expiry of period of two years by an executive order contained in SRO No. 556 (1)/89. Mr. Rasheed A.Akhund, Advocate-appeared for petitioners in C.P.No.D 780/89: C.P.No.D‑687/89; C.P.No.D‑693/59: C.P No.D‑759/89; C.P.No.D 760/89; C.P.No. D‑8‑16/89 and C.P. No.D‑668/89. He relied on crises reported in P L D 1969 Supreme Court 599; P L D 1970 Supreme Court 439; and P L D 1969 Supreme Court 407 and 1955 C L C 275‑

1. He also relied on the case reported in P L D 1971 SC. 252 which give definitions of a "vested right". As regards the relevant date for levy of central excise duty to be the date of production of goods he relied on cases reported in P L D 1980 Lah. 377; 1981 SCMR303and1990CLC

838. In case of new Sugar Mills whereby the notification impugned in this petition has done away with the exemption from payment of 50% of central excise duty granted earlier on production of sugar for first two years before the expiry of that period he contended that section 21 of the General Clauses Act can not enable the Federal Government to withdraw such exemption after the previous notification was actually acted upon and exemption availed of partly by such factories. He referred to case reported in P L D 1969 SC

407. Mr. Khalid Anwar, Advocate appearing for the petitioners in C.P. No. D 468/89 and C.P. No. D‑767/89 mainly contended that the Notifications impugned in the petitions can only be applied prospectively as a notification can never have a retrospective operation. In support of his contention he referred to cases reported in P L D 1980 Lah. 377; 1980 S C M R 303 and 1990 C L C

569. Mr. Raja Qureshi, Advocate, appearing for the petitioners in C.P. No.D 669/89 and Mr. Rais Mushtaq, Advocate, appearing for petitioners in C.P. No.D 437/89; C.P. No. D‑741/89; C.P. No.D‑742/89 and C.P. No. 322/90 adopted arguments advanced by Mr. Khalid Anwar, Advocate. Mr. Mansoor Ahmed Khan, Advocate, appearing for petitioners in CP No.D‑743/89 and C.P. No.D‑51/90 further contended that once a vested right of exemption from payment of central excise duty is acquired by the petitioners validly the same cannot be taken away by another notification issued in exercise of powers contemplated by section 21 of the General Clauses Act. According to him the exemption from payment of central excise duty on such quantity of sugar that is manufactured by a factory in excess of its average production in two previous financial years will always be exempt from payment of such duty. He then contended that the petitioners had set up their factories on the promises made out by the Federal Government that certain quantities of sugar produced by them will be allowed the concession in payment of central excise duty under the two notifications. The Federal Government could not under the theory of "promissory estoppel" withdraw the concession allowed through earlier two notifications by the notifications impugned in these petitions. In support of his contention he referred to cases reported in 1979 S C M R 640; 1983 C L C 784; PLD1978Lah468;PLD1980Lah377;1981SCMR303;PLD1964SC 113; P L D 1970 SC 439; 1981 P T D 277; A I R 1968 S C 718; 1986 S C M R 1917; 1986 S C M R 903; P L D 1987 Kar 63; 1989 C L C 1692; 1988 M L D 2272; P L D 1989 Lah. 81; P L D 1976 SC 277; 1990 C L C 569; PTCL 1989 FC 7; A I R 1986 SC 806; A I R 19,80 SC 1021; and A I R 1986 SC 1567. Mr. A.G. Mangi, the learned Asstt. Advocate‑General Sindh, appeared for Province of Sindh for one of the respondents in C.P. No.D‑706/89 and stated that in fact no relief is sought against the Government of Sindh and therefore he had nothing to say in the matter. Mr. S.A. Wadood, the learned Deputy Attorney‑General for Pakistan appearing for respondents, contended that the Federal Government have been conferred unfettered and discretionary powers to grant exemption from payment of central excise duty under section 12‑A of the Central Excise and Salt Act, 1944 and similar power has been conferred on Government by section 21 of the General Clauses Act, 1987. The Courts cannot therefore go behind the exercise of such power and examine propriety of either granting exemptions or withdrawing the same. Exercise of such power will also not be justiceable under Article 199 of the Constitution of Pakistan. He further contended that till 1983 when section 3‑C was inserted in the Central Excises and Salt Act, 1944, by Finance Ordinance, 1983, the central excise duty was to be levied and charged on manufacture of the goods in a factory but after the, addition of such section the duty is to be charged according to the tariff value and the rate applicable on the date when the goods are cleared from the factory. He further contended that the power of granting exemptions from payment of central excise duty as contemplated by section 12‑A of the Central Excises and Salt Act, 1944 can only be exercised prospectively. Any notification therefore issued in exercises of such power can only be prospective in operation. He further contended that notification which is in excess of the authority vested in a Government is to be treated as a void notification and non‑existing in law. To support his such contentions he relied on P L D 1967 Kar 184 P L D 1977 Lah 1166; A I R 1970 S C 385; A I R 1956 Allahabad 35; A I R 1954 Allah. 538; A I R 1981 Orissa 13; P L D 1969 SC 430; P L D 1963 SC 633; P L D 1976 SC 258 and P L D 1974 Kar

374. The Federal Government is empowered by provision made in section 12‑A of the Central Excises and Salt Act, 1944 to grant exemption from payment of part or whole of the Central Excise Duty on certain goods with or without any conditions. Section 21 of the General Clauses Act, 1897 empowers the Federal Government to add, amend, vary or rescind any notification issued by it under any Federal Act. The provisions contained in section 12‑A of Central Excises and Salt Act, 1944 enables the Federal Government to exercise such power without any fetters, limitations and is purely of discretionary nature. Similarly power to amend, vary or rescind any such notification can be exercised by the Federal Government. From the very nature of things exemptions so granted by the Federal Government from payment of certain amount of central excise duty on production of sugar by the petitioners belongs to such class of privileges that could be conferred on the petitioners as a favour and same could in exercise of discretionary powers of the Government be regulated or even withdrawn by a subsequent notification issued under section 21 of the General Clauses Act, 1897. In case the Federal Government once grants such exemptions even though without any conditions as to limit of time it cannot be said that by exercising its power it had divested its authority under the General Clauses Act. The notification allowing exemption from payment of certain excise duty issued under section 12‑A of the said Act will continue to be regulated by exercise of power under section 21 of the General Caluses Act. In taking such view of the matter we are supported by the case of Government of Pakistan and another v. M/s Mardan Industries Limited, Sakha Kot and another, decided by the Supreme Court of Pakistan and published in 1988 S C M R

410. No exception can therefore be taken to the notification whereby exemption allowed to old sugar mills has been withdrawn. The theory of "Promissory Estoppel" will also be of no avail as such estoppel is not available against Government action validly taken under a statute. Such view is supported by the decision reported in A I R 1980 SC

85. Decisions in the cases of Central Board of Revenue etc. v. Colony Thal Textile Mills Ltd. (1981 S C M R 303) and M/s. Jupiter Textile Mills Ltd. v. Deputy Collector of Central Excise and Land Customs 1990 C L C 838 referred to on the point that Central Excise Duty can be levied on the date of manufacture while interpreting section 3 of the said Act. These cases relate to a period prior to 1983. At the relevant time although Rule 9‑A of Central Excise Rules, 1944 provided that duty shall be paid according to the tariff applicable when duty is paid or when goods are cleared from the factory such rule was not considered as it did not have statutory sanction. The legislature immediately took note of the decision of superior Courts in case of Colony Thal Mills mentioned above and added section 3‑C in the said Act, through Finance Act, 1983 and simultaneously omitted Rule 9‑A of the Central Excise Rules, 1944. Thereafter the Central Excise Duty can validly be charged in accordance with the tariff of duty applicable on a date when goods are taken out of the Mills. We are on such aspect of the case fortified by the decision taken in the case of Noori Trading Corporation (Pvt.) Ltd. and others v. Federation of Pakistan through Ministry of Finance, Islamabad and 3 others published in P L D 1989 Quetta

74. The contentions advanced by the counsel of petitioners have therefore no force. There can be no dispute regarding the operation of notification being always prospective. Notification impugned herein according to the letters of concerned authorities addressed to the petitioners clearly state that the same will be applicable from 3‑6‑1989 and petitioners can therefore have no grievance on that point. In case of new Sugar Mills the second notification in case of certain Mills has withdrawn concession from payment of Central Excise Duty before the expiry of period of two years commencing from the date of production. We are in respective agreement and follow the dictum of law as laid down in the case of Pakistan through Secretary, Ministry of Finance v. Mohammad Himayatullah Farukh reported in P L D 1969 S C 407 and hold that the impugned notification cannot take away such rights as were acquired by the petitioners of being exempt from payment of 50% duty on first two years of production. We are fortified in this view of the case by the decision in the case reported in P L D 1970 SC

439. In M/s. Army Welfare Sugar Mills (Petition No.D‑437/89) and Faran Sugar Mills Ltd. (Petition No. D‑468/1989) the petitioners have also challenged the action of Collector of Central Excise and Land Customs demanding the refund of duty adjusted under second part of the Notification No.SRO 814 (1)/85 dated 29‑8‑1985. Mr. Khalid Anwar has contended that the executive functionaries of the Government cannot declare any operative notification as void. He further contended that the Notification under section 12‑A can be given retrospective effect and principles of locus poenitentiae will apply. This notification was issued under section 12‑A of Central Excises and Salt Act and benefits conferred were obtained by the petitioners during the years 1985‑86 and 1986‑

87. It was in the year 1989 that the Collector of Custom realizing the illegality made a demand for refund. The notification to the extent of its operation with retrospective effect was illegal. See P L D 1967 Kar

186. It is well settled that a void order need not be set aside. Reference can be made to P L D F 1974 Kar.372. In such a situation the petitioners cannot take advantage of the fact that acting on the notification they have derived benefit under it and the same cannot be re‑opened. In G.L. Bhattachrya's case P L D 1964 SC 503 the order of remission passed by the Provincial Government was valid and it was withdrawn after it had been acted upon. Such withdrawal was not allowed. In Shahbaz v. The State P L D 1956 F C 44 the order of remission of sentence had validly been issued but before it became effective, it was withdrawn, such withdrawal was held to be valid. In Pakistan v. Hidayatullah P L D 1969 SC 407 the President had passed a valid order fixing the salary of the respondent which had become terms of his service which was protected under Article 178 of the Constitution of 1962. The President's subsequent order withdrawing the earlier order was therefore held to be void and it was observed: "The authority which has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." In P L D 1970 SC 439 and Al Samriz 1986 S C: M R 1917 the claim for exemption was made under a valid notification on the basis of which vested right was created. Presently the part of the notification which is the petitioners claim was void. Therefore no legal effect could be given to it nor in pursuance thereof any valid legal right could be created. Although we do not approve of the action taken by the Collector of Central Excise and Land Customs as such action should have been taken by Central Board of Revenue, we would refuse to grant relief to the extent of the refund impugned by the petitioners in Petitions Nos. 437/89 and 468/89 as it would amount to exercise of discretion in favour of injustice. As the result of above discussion we find no merit in the petitions filed by the old Sugar Mills being CP No.D‑(xS6/89; C:P No.D‑687/89; CP No.D 693/89; CP No.D‑706/89; CP No.D‑713/89; CP No.D‑739/89; CP No. D‑759/89; CP No. D‑760/89; CP No. D‑846/89; CP No.D‑009/89; CP No.D‑767/89; CP No.D‑742/89; CP No.D‑821/89; CP No.D‑322/89; and CP No.D‑51/90 and the two petitions being CP No.D‑437/89 and CP No.D‑468/89 mentioned in the preceding paragraph, and dismiss the same with costs while in case of Petitions CP No.D‑668/89; CP No.741/89 and CP No.D‑743/89 we declare that the Notification No. SRO 556(1)/89 dated 3rd June, 1989, so far as it applies to withdrawal of 50% exemption from payment of Central Excise Duty before the expiry of period of two years calculated from the date of their production of sugar is without lawful authority and of no legal effect and allow these petitions only to this extent. A.A./S‑678/K Order accordingly,