1982 PLP 1682 (CLC)

Part II.‑Services rendered by Hotels and Restaurants, (1) All services, facilities and utilities, 15 per Cent. including catering, supplies and mer. of the chandise provided or rendered by an charges hotel. Explanation.‑"Hotel" means an establishment, organisation or place where rooms or suites of rooms are let out on rent, whether or not it has any arrangement for catering or pro vides any other services, facilities or utilities, by whatever name called. (2) All services, facilities and utilities, 15 per cent. including supplies and , merchandise, of the provided or rendered by a restaurant charges Explanation.‑"Restaurant" means an establishment, organisation or place where food or drinks are sold, whether or not it provides any other services facilities or utilities, by whatever name called, and inclu4cs a night club and cabaret." (b) It may be noticed that the term "excisable services" has been defined in section 2 (dd) as to include services, facilities and utilities specified in Part II of the first schedule as being subject to a duty of excise, whereas subsection (1) of section 3, which is the charging section provides that the excise duty shall be levied and collected in such manner as may be prescribed on excisable goods, produced, or manufactured and on all the excisable services provided or rendered, in Pakistan at the rates mentioned in the schedule. Furthermore, part 11 of the first schedule describes the services rendered, by hotels and restaurants, which are excisable. (c) 1t has been vehemently contended by Mr. Khalid Anwar that in order to press into service the above provisions of the Act, the pre requisite condition is that the facilities/services mentioned in part Il of first schedule should be rendered by a hotel and a hotel means organisa tion or place where rooms and suites on rent are let out, whether or not it has any arrangement for catering or providing any other services, facilities or utilities. He has also referred to the schedule of the application form A. 1. 7 for obtaining a license for running the hotel in question (annexure to the re‑joinder), to show that the entire building known as `Hotel Metropole Building' has not been used for hotel purpose as only those portions of the building were mentioned in the schedule to the above application, which were intended to be used for running a hotel and in fact they have been so used. It may be pertinent to reproduce hereinbelow the aforesaid schedule to form A. 1. 7, which reads as follows Distinguishing detailed purpose of letter or num‑ description each ber of each or letter and number of each In Hotel Metropole Building, situated on the North by Mereweather Road, on the South by Club Road, on the East by Palace Cinema, on the West by Abdullah Haroon Road, only on the 3rd and 4th floors of the Hotel residential rooms and on the ground floor is the Coffee shop, Bar Ball Room, Garden Party area, Samar and the Discotheque

1. Residential rooms on 3rd and 4th floors.

2. Samar.

3. Discotheque.

4. Coffee shop.

5. Lounge Bar.

6. Banquet Hall.

7. Garden Party Area". (d) From the perusal of the above‑quoted schedule, it is evident that in the application form for obtaining a license to run Hotel Metropole, the petitioner had mentioned. certain portions of the building and not the entire building. The Assistant Collector in his impugned order has not given any reason whetsoever, as to why he was of the view that the demand of Rs. 1, 4,413.67 was correct. Whereas the Collector C. E. and L. C in his order has held that upon carefully considering the copies of the leased agreements etc. of the three parties supplied by the party, he was of the view that the apartments and shops are a part of M/S Hotel Metropole and that Hotel Metropole are extending excisable services to their occupants. It tray also be pertinent to observe that the Board of Revenue upon relying on the definition given in item 1 (I) of Part II of the First Schedule also came to the conclusion that the petitioner was providing/rendering services, which are excisable. It may be noticed that in none of the above orders, the effect of granting of the license for running a hotel in a portion of a building has been considered by the authorities. It is not clear as to whether this aspect was canvassed before the authorities, who have passed the impugned orders. Furthermore, the demand in question relates to the period commencing from 30‑6‑1970 to April 1972, whereas the above Form A. I. 7 is dated 28‑6‑1972, which is a date subsequent to the impugned period of demand. Nothing has been brought on the record to indicate that license for the impugned period was also for a portion of the building. It may again be observed that the petitioner had filed a photostat copy of the above Form A. I. 7 along with their affidavit‑in re‑joinder and, therefore, it has not been commented upon by the respondents in their counter‑affidavit. In our view the above aspect is very pertinent to the point in issue. In this view of the matter, it will be just and proper to set aside the three impugned orders and to refer back the matter to the Assistant Collector C. E and L. C. for fresh adjudication. We accordingly, g declare the impugned order without lawful authority and remand the case to the Assistant Collector Excise and Land Customs, who shall decide the matter afresh after notice to the parties and after taking on record the evidence if any produced. In the circumstances of the case, there will be no order as to costs. Order accordingly,