2002 PLP 130 (SCMR)

IRSHAD HASAN KHAN, C.J.‑‑‑Through these petitions under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 review is sought of judgment dated 19‑5‑2000, paragraphs 3, 4 and 5 whereof read as under:‑‑ "

3. The tax levied through the first amendment was struck down by the Peshawar High Court on acceptance of Writ Petition No. 1713 of 1998, decided on 6‑10‑1999. The petitioners, who are manufacturers of sugar and bottlers of soft drinks, had also challenged both the amendments on various grounds but their writ petitions were dismissed by the Lahore High Court, Lahore. Hence, the petitions highlighted above. " "

4. When the petitions came tip for hearing today Mr. A. Karim Malik, learned Advocate Supreme Court appearing for the respondents, pursuant to notice issued on 17‑2‑2000, made a statement at the bar that he would not contest the challenge thrown to the first amendment as the petition for leave to appeal (Civil Petition No.474‑P of 1999) directed against the judgment of the Peshawar High Court in Writ Petition No. 1713 of 1998 was dismissed by this Court on 30‑11‑1999. He also placed on record a copy of the judgment of this Court, relevant portion whereof reads thus:‑‑ "It is quite clear that the sales tax is leviable at the rate of 12.50 per cent. both under section 3(1) as well as section 3(2)(c) of the Act. It is not disputed before us that the aeriated water manufactured by the respondents is mentioned in the 3rd Schedule to the Act. The learned Judges of the High Court rightly came to the conclusion that the rationale behind levy of sales tax under clauses (1) and (2)(c) of section 3 of the Act is different. A plain reading of the above section will show that under section 3(1) of the Act the tax at the rate of 12.50 is recoverable on the taxable supplies by a registered person while the sales tax is recoverable under clause (c) of subsection (2) of section 3 of the Act at the same rate on the retail price of the product which is to be prominently, legibly and indelibly printed or embossed by the manufacturer on each packet, contained, package, cover or label of the goods. It is, therefore, quite clear that the sales tax under subsection (2)(c) of section 3 (ibid), is not payable on the basis of taxable supplies but on the retail price while, under section 3(1) the sales tax at the rate of 12.50 per cent. is recoverable on the taxable supply. Subsection (I‑A) which was added in section 3 after subsection (1), makes an additional tax payable at the rate of one per cent. of the value on the taxable supplies in addition to the tax payable under subsection (1) in respect of all supplies made in Pakistan to a person other than a registered person. It may also be mentioned here that through Finance Act IV of 1999 subsection (1‑A) of the Act has been further amended as follows:‑‑ "(i) in subsection (lA).‑‑-- (a) For the word "one", wherever occurring, the word "three" shall be substituted; and (b) For the expression "subsection (1)" the expression "subsection (1), clause (c) of, subsection (2) and subsections (4) and (5)" shall be substituted; and" "The above amendment introduced in subsection (1‑A) of the Act supports the conclusion that the cases falling under clause (c), subsection (2) were not previously within the mischief of subsection (1‑A) of the Act. We are, therefore, of the view that the conclusion reached by the learned Judges of the High Court does not suffer from any legal infirmity. No case for interference with the judgment of High Court is made out. The petition is, accordingly, dismissed and leave is refused." "

5. Paced with this situation the learned counsel for the petitioners did not address arguments on the questions raised in the petitions and took the stance that he would be satisfied if further tax at the rate of 1 % levied by Finance Act, 1998 is set aside. The stance is understandable inasmuch as the first amendment being technically defective was struck down on the touchstone of the second amendment which does not suffer from any legal infirmity. Consequently, the petitions are converted into appeals and partly accepted to the extent of further tax at the rate of 1 % levied by Finance Act, 1998 and dismissed in respect of further tax at the rate of 3 % levied by Finance Act, 1999. No order as to costs."

2. Mr. A. Karim Malik, learned Senior Advocate Supreme Court appearing in support of these petitions has reiterated the ground taken in the Memorandum of petition at pages 2‑4 (i, ii and iii) mainly making reference to his indisposition on the day the matters were argued. He specifically contended that he was not in proper frame of mind due to 'blood pressure' and other ailments at the relevant time, therefore, the concession attributed to him may be recalled. On merits, he argued that the item 'sugar' was not mentioned in the 3rd Schedule to the Sales Tax Act, 1990 (hereinafter referred to as the Act). It was covered by subsection (1‑A), inserted by Finance Act, 1998 in section 3 of the Act and was, therefore, covered by subsection (1) (ibid). It had no nexus with clause (c) of subsection (2) of section 3 of the Act to which the judgment of the Peshawar High Court in Writ Petition No. 1713 of 1998 related. He vehemently argued that the cases of 'sugar' were different from those of 'beverages'.

3. Mr. Ali Ahmed Awan, learned Advocate Supreme Court appearing on behalf of the respondent‑Sugar Mills argued that the alleged indisposition of the counsel .is not a valid ground for review and that accepting such a plea would tantamount to laying down a bad precedent. He argued that the concession was made by Mr. A. Karim Malik after due deliberation, therefore, he cannot be allowed to withdraw the same now. He further argued that the point on merits was never raised before the High Court, therefore, he cannot be permitted to raise the same for the first time in these proceedings.

4. After hearing the learned counsel for the patties we are not inclined to the view that review of the impugned judgment is called for on the grounds urged by the learned counsel for the, petitioners particularly when the petitioners were represented by another counsel as well. Needless to observe that the question in relation to 'beverages' and 'sugar' having different connotations in the, context of the sales tax, will be considered in some other appropriate case.

5. Resultantly, the petitions are dismissed. M.B.A./C‑42/S Petitions dismissed.