1985 PLP 449 (PTD)

2. (a) In support of the above petition Mr. S. M. Sadiq, learned counsel for the petitioners assisted by Mr. Abbas Ali, Advocate has contended as follows: (i) That SRO‑51‑1/72, dated 13th May, 1972 had not been withdrawn by respondent No. 1 and, therefore, vessels imported for scraping remained exempted from the payment of sales tax. (ii) That in any case even if it is to be held that by necessary implica tion the above Notification No. SRO‑51‑1/72 stands withdrawn, it was withdrawn on 5th November, 1978 upon issuance of Noti fication No. 1294 (1)/'78, dated 5th November, 1.978 which cannot operate retrospectively. (b) On the other hand Mr. Akmal Waseem, learned counsel for the respondent who has argued on behalf of the respondent at the suggestion of Syed Inayat Ali, Advocate has urged as follows: (i) That the effect of issuance of Notification No. 1057 (1)/78, dated 24th August, 1978 was to withdraw the concession of sales tax granted in respect vessels for scraping under above S. R. O. 51‑1 /72. (ii) That the object of issuance of S. R: O‑ 1294(1.)/78, dated 5th November, 1978 was to fill in the clerical omission to mention the concessional rate in above S. R. O. No. 1057(1)/78, dated 24th August, 1.978 and, therefore, the levy of ales tax on the vessels in question was in consonance with the above Notification.

3. Adverting to the first contention of the learned counsel for the part e, it may be observed that under S. R. O. 51‑1/72 dated 13th May, 1.972 issued under section 7 of the Act, exemption from payment of sales tax was inter alia granted to vessels imported for scraping. The above Notification was followed by S. R. O.‑ 820(1)/73, dated 9th June, 1973 whereby in exercise of the power conferred under subsection (1) of section 7 of the Act, the Federal Government directed the recovery of sales tax on the goods mentioned therein, at the concessional rate. The above notification does not include P. C. T. 89.04, which covers the item of vessels. The above notification was followed by the above S. R. O. No. 1057(1)/78, dated 24th August, whereby para. 7 was added to, which reads as follows: "

7. Ships, boats and other vessels falling under P. C. T. heading No. 89.04 imported for breaking‑up." It may be noticed that the object of incorporation of the above‑quoted para. 7 was to exclude ships and other boats from the category of the exempted items and to classify them with the items in respect of which sales‑tax at the reduced rate was to be charged and not at the rate of 20% mentioned in section 3(2) of the Act. It is also above para. 7 the reduced rate was not specified was followed by above S. R. O. No. 1294(1)/78, dated 5th November,. 1978 which reads as follows: "S. R. O. 1294(1)/78.‑In exercise of the powers conferred by sub= section (1) of section 7 of the Sales Tax Act, 1951 (III of 1951), the Federal Government is pleased to direct that in this Ministry's Notification No. S. R. O. 820(1)/73, dated the 9th June, 1973 the following further amendment shall be made and shall be deemed to have been so made on the 24th August, 1978, namely: In the aforesaid Notification, in the table, against Serial No. 'l in the first column, in the third column, the figure `8' shall be added." We are inclined to hold that the effect of issuance of S. R. O. No. 1057 (1)/78, dated 24th August, 1978 was to withdraw the concession of non payment of sales tax granted under aforesaid S. R. O. 51‑1/72, dared 13th May. 1972 ,in respect of vessels for scraping and therefore, by necessary implication and because of repugnancy the above earlier Notification No. S. R. O. 51‑1/72 stands repealed upon issuance of above S. R. O. No. 1057. 4. (a) As‑regards the second submission of the learned counsel for the parties, it may be pertinent to observe that if we were to hold that non‑mentioning of the rate of sales tax in above S. R. O. No. 1057(1)/78 was merely a clerical omission, the question of amending the above S. R. O. retrospectively would not arise. Mr. S. M. Sadiq, learned counsel for the petitioner has referred to the following cases. (i) Mst. Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner (,Land), Sukkur P L D 1966 (W. P.) Kar."79, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi was pleased to hold that the modification of the notification by a correction slip would be operative prospectively and not retrospectively. The reliance was placed on the two judgments of the Hon'ble Supreme Court of Pakistan, namely Rehmatullah v. The Deputy Settlement Com missioner P L D 1963 S C 633 and Fazal Ahmad v. Ziaullah Khan PLD1964SC494. (ii) The Burmah Shell Oil Storage and Distribution Company Ltd. v. he Trustees for the Port of Chittagong P L D 1961 S C

452. If in the above case the Trustees of the Port of Chittagong issued a second notification substituting section 57(l)(c) for section 57(2)(b) off the Chittagong Port Act, 1914. It was held by the Hon'ble Supreme Court that this substitution did not amount to making of good of an accidental omission but it made substantial change and material alteration in the notification and, therefore, the Second notification could not be operative retrospective. (b) On the other hand Mr. Akmal Waseem has referred to the case of Khyber Electric Lamps Manufacturing Co. Ltd. v. Federation of Pakistan, through Ministry of Finance, Islamabad and another (PLD 1983 Pesh. 112) in which a Division Bench of the. Peshawar High Court (though shown as decided by the learned Acting Chief Justice as S. B.) held that a notification to remove any confusion and doubt about the purpose of the earlier notifica tion can be given retrospective effect.

5. In our view, the basic question in the present case as observed is; as to whether the omission in the above S.R.O. 1057(1)/78 to specify the concessional rate of the sales tax was an accidental omission. If it was an accidental omission, the same could have been made good by a subsequent notification as has been held by the Hon'ble Supreme Court in the above cited Chittagong Port case P L D 1961 S C 452 but if it was not an accidental omission, in that event the fresh notification can only take effect prospectively though it purported to be retrospective. We are inclined to hold that omission to mention the concessions dated 24th August, accidental omission, which was made good by S. R. O. No. 1294‑(1)/78, dated 5th November 1978. In this view of the matter, the question of making the above notification, dated 5th November 1978 applicable retrospectively does not arise. We may observe that it is not the form or C wordings of the above notification, which is relevant, but its object and effect is material for ascertaining, whether it is to operate prospectively or, retrospectively. We may also point out that if the effect of the above S. R. O. 1057 (1)/78 dated 24th August, 1978 was to exclude vessels from the list of the exempted items from the payment of sales tax, the result would be that under subsection (2) of section 3 of the Act, the petitioners had become 3ibale to pay sales tax at the rate of 20 /d. It is, therefore, evident that making of good of the above accidental omission in aforesaid S. R. O. No. 1057(1)/78, dated 24th August, 1978 is in fact beneficial to the petitioners as the prescribed concessional rate is only 8% against 20%. For the aforesaid reasons the petitions are dismissed but there will be no order as to costs. M. Y. H. Petition dismissed.