1985 PLP 987 (MLD)

It is contented by the learned counsel for the petitioner that since it is abatement of duty lump sum for the earlier together does not arise and stand taken by the respondents is erroneous. It is emphasised that the difference between the duty leviable on actual production and the duty leviable on production capacity can be the only criterion and that total of different categories of yarn carrying different rates of duty could not be added together and had to be based and demanded on the basis of duty. To appreciate the contention of the learned counsel it is pertinent to reproduce the Rule 4(1) of the capacity rules, which reads as follows:- Rule 4(1) "If, in a financial year, a factory. (i)???????? situated in East Pakistan works for less than 921 shifts, or (ii)??????? situated in West Paksitan works for less than 1000 shifts, and the Collector or any other Officer authorised in this behalf by the Central Hoard of Revenue is satisfied that any shifts short of the number specified in clause (i) or clause (ii), as the case may" be, could not be worked for reasons which were beyond the control of the manufacturer, then for each shift in respect of which he is so satisfied, the Collector or such other Officer may allow an abatement from the duty leviable' under rule 3, the rate of abatement for each such shift being arrived at by dividing the total amount of duty leviable for that financial year by the number of shifts stipulated in clause (i) or clause (11) as the case may be: Provided that, in the calculations for the purpose of allowing abatement under this rule, the following events shall not be taken into account, namely:- (I)??????? any closure of the factory for a period of less ,than six days at a time or (ii)??????? any closure of the factory for more than a period of six days at a time about which advance notice was not given in writing to the proper officer, or (iii)?????? any closure of the factory for normal clearing, repair or maintenance purposes: Provided further that no sl6tertrent of duty shall be allowed for any reason whatever if the total production of cotton yarn of that factory, in a financial year, does not fall short of the production capacity of such factory; and, if such total production falls short of the production capacity, the abatement shall not exceed the difference "of the duty leviable on the production capacity and the cotton yarn produced in the year." The respondent have interpreted this rule which is incorporated in the order of respondent No.l which is in the following terms:- ??????????? "Without going into discussion about the closure whether the same has been due to condition and circumstances beyond the control of the mill or otherwise it is noticed that the production of yarn during the period from 1-7-1974 to 31-3-1975 has been 42,29,864 lbs, while the capacity fixed has been 41,27,570 lbs. As such the production has been in excess of the capacity to the extent of 1,02,294 lbs. and therefore, abatement is not admissible as per 2nd proviso of Rule 4(1) of' Production Capacity (Cotton Yarn) Rules, 1968. There is also no room under the proviso for admitting the contention that production should be taken on the basis of average count. Nor the proviso provide, for considering for full-short in terms of duty though production has been in excess of tile capacity." It has been held by the respondents that there is no room under the proviso for admitting the contention that production should be taken on the basis of average court, nor the proviso provides for considering for shortfall in terms of duty trough production has been in excess. The learned counsel has referred to a case of Colony Sarhad Textile Mills Ltd., Nowshera v. Superintendent, Central Excise and Land Customs, 1979 S C M R 640 in support of his contention but the authority quoted by the learned counsel does not support his contention. In the cited precedent the grant of a rebate of the duty paid on exciseable goods which are exported out of Pakistan was under consideration. It was observed that the rate of excise duty was always higher upon the superior qualities of fabric and yarn, and the direction to assess the production capacity of a mill with regard to each category of fabric or yarn produced by that mill was in consonance with the manner in which the said Act had been enforced since its promulgation. The production capacity of the mill was determined and on the promulgation of the yarn and the fabric rules, it commenced paying excise duty on its products and collecting rebate against its export under these rules. It was further observed that the rebate granted to the appellant some time even exceeded the duty paid on the production capacity of the category of cloth or yarn exported, necessarily, therefore, the appellant was receiving a refund of tire duty payable on its exports, therefore, the rule was not only eminently reasonable, but it erred on the side of generosity in favour of textile mills. As the point involved in the cited precedent relates to a different point therefore, this case does not apply to the facts of the relevant case. The learned Deputy Attorney-General has stated that the total actual production was higher than the capacity assessed, therefore, the petitioner has no right to claim the abatement of duty. There is force in this contention. Abatement can be allowed if total production in all categories is less than the total capacity. The admitted position is that the petitioner mill produced yarn more than, the capacity fixed by the authorities. The production had been in excess of the capacity. The learned Deputy Attorney-General has stated that the duty of coarse yarn and, therefore, in order to save duty the mills usually produced coarse yarn to earn more profit and thereby cause loss to the Government) in the payment of duty. To this contention there was no reply. The interpretation placed by the Authorities on proviso, to rule 4(1) is reasonable and not ambiguous. The language is clear that no abatement of duty shall be allowed if the total production of cotton yarn does not shortfall of the production capacity of such fact. The rebatement can only be admissible if the total production capacity of the factory falls short of but in the instant case the production of the petitioner-company is excess of the production capacity. The petitioner is not entitled to any rebate. Where the intention of the law given is clear and the language of statute is unambiguous and then the superfluous words cannot be introduced so as to make it inconsistent with the law. It has been observed in a case M.A. Khakwani v. Mst. Shaheen and another 1981 C L C 1545 that construction to be made to suppress mischief and advance remedy and unreasonable artificial or anomalous construction is to be avoided. In the case Divisional Superintendent, P.W.R. Karachi v. Bashir Ahmad, P L D 1973 S C 589 it has been observed that remedial statutes should be construed in manner so as to advance remedy and suppress mischief. In the case Province of East Pakistan v. Sharaftullah and 87 others, P L D? 1970 SC 514 it has been held that Courts to adopt that construction which will remove lacuna and advance purpose and object of statute. In the case Miss Rifat Parveen v. Selection Committee through Principal/Administrator, Bolan Medical College, Quetta and 7 others, P

1. D 1980 Quetta 10 it has been held that the Courts have always leaned in favour of saving a legislation and have placed such construction upon its words as would give reasonable results and would avoid artificial and anomalous construction. The overall conclusion from the above narrated facts is that the proviso to rule 4(1), is quite clear and the construction made by the respondents is correct and legal. The petitioner has not been able to make out the case for our interference in the extraordinary jurisdiction of this Court. The petition has no force and the same stands dismissed. A.A.???? Petition dismissed.