1981 PLP 867 (SCMR)

DORAB PATEL, J.-This is an application for the review of this Court's judgment dated 11-8-1979 by which the Court had dismissed the appellant's appeal against a judgment of the Peshawar High Court by which the High Court had dismissed the writ petition filed by the appellant against the respondent. The first error apparent in the judgment, according to learned counsel, was an error which went to the root of the matter, and, this error was that the Court had proceeded in its judgment on the erroneous assumption that the superior qualities of fabric and yarn had always been subjected to a higher rate of excise duty under the Excise Act than inferior qualities of fabric and yarn. Assuming for the sake of argument only that higher rates of duty on superior qualities of fabric, cloth and yarn were imposed for the first time only under the Excise Duty on Production Capacity (Cotton Yarn) Rules, 1968, and the Excise Duty on Production Capacity (Cotton Fabric) Rules, 1968, nothing turns on the criticism of learned counsel, because admittedly the rates of duty under these rules were higher or, superior varieties of fabric and yarn than on inferior varieties of the same products. Next, according to learned counsel, another error apparent in the Court' judgment was that the judgment proceeded on the assumption that fabric and yarn had been divided into four categories. But, according to learned counsel, this did not correspond with the categories into which fabric and yarn had been divided under the Excise Act and on our enquiry we were informed that there were nine categories in the Schedule to the Act. Now, apart from the fact that learned counsel had not, in his judg ments in the appeal, referred us to the nine categories, nothing turns on the question whether there were nine categories or four categories, because the rules which had to be construed in the appeal prescribe four categories. Further, according to learned counsel, the reliance placed in the judg ment of the Court on the notification of the Ministry of Finance dated 12-8-1967 amounted to an error apparent, because this notification was issued without any legal authority. But, on our enquiries, it transpired that learned counsel also wanted to rely on parts of this notification, therefore, he only criticized paragraph 5 of the notification. It is strange that learned counsel challenges the vires of a notification on parts of which be relies. Be that as it may, we had examined this argument and rejected it, therefore, the plea is only an attempt to re-argue the appeal. In any event, nothing turns on the criticism advanced, because the appeal had been dismissed on other grounds also; and so we pointed out to the learned counsel that the appellant's claim had been rejected in. the, judgment on the ground that the appellant was collecting a subsidy in the guise of a claim for rebate of excise duty paid on its exports. But, according to learned counsel, this very finding which was fatal to the appellant's case contained an error apparent, because although the Court bad followed the definition 'of "excise" in Jowitt's Dictionary of English Law, the Court had not followed the definition of "drawback" in the same dictionary. As this strange argument assumes that the definition of "drawback" supports the appellant's claim, we would quote it. It reads .- "a term used in commerce to signify the remitting or paying back upon the exportation of a commodity of the duties previously paid on it." On the plain language of this definition a drawback is merely the paying back "of the duties previously paid" on the goods actually exported. But, for the reasons given at length in the judgment, the amount collected by the appellant as rebate on its exports exceeds the duty paid by it on its exports and this is because its exports of a particular category of fabric or yarn exceeded the production capacity of that category of fabric or yarn, therefore, the definition does not lend any support to the appellant's case, and the plea is one more attempt to reargue the appeal. The only other error apparent alleged in the judgment was that the Court had erred in rejecting learned counsel's submission that excise duty could not by definition be levied on goods which had. been exported. But, whether the view taken in the judgment be right or wrong, the question is whether there was an error apparent in the judgment; and the view take in the judgment that excise duty can be levied on exports is supported not only by definitions in standard dictionaries, but also by judgments of the superior Courts of the common law countries including the judgments the Privy Council, of the Australian High Court and of the Indian Supreme Court, therefore; we asked the learned counsel to clarify his submis sion. He said that the Court had relied on a judgment of the Privy Council in Atlantic Smoke Shops Ltd. v. Conlon and others (Attorney-General of Canada) and others ((1943) 2 All E R 393), but as it had misread the judgment, there was an error apparent in it. Now, Lord Simon, L. C., who delivered the judgment of the Court defined the word "excise" as follows :- "The word is usually (though by no means always) employed to indicate a duty imposed on home manufactured articles in the course of manufacture before they reach the consumer. The words underlined in this passage have been underlined by us, because, according to learned counsel, they mean that excise duty could not be levied on exports. The argument assumes that the word "consumer" in these words means the consumer in the home market only, and, therefore, the submission of learned counsel involves reading into the observations of Lord Simon, L. C., a qualification not contained in them. Secondly, according to Lord Simon, L. C., the word "excise" is usually (though by no means always) employed to indicate a duty imposed of the types specified in the passage. Therefore, even if we read into the passage the qualifica tion which learned counsel wants us to read into it, the passage does no support the appellant's case, because of the qualifying words "usually" an "though by no means always." Thirdly, and this is most important, a review can lie on the ground of an error only if it is material to the conclusion reached in the judgment sought to be reviewed. Therefore, we had pointed out that the Court had rejected the construction which the appellant sought to place upon the word "excise" not only on the basis of the Private Council's judgment, but on the basis of several other judgments and on the basis of the meaning of the word "excise" as defined in standard dictionaries. In these circumstances, even if it is assumed that the Privy Council' judgment was misread this alleged error would .not be material, because the view taken by the Court was supported by other judgments about which. Mr. Mumtaz Hussain did not attempt to say a word. Obviously, therefore, the so-called error was not material and cannot furnish a ground for a review. The review petition is merely an attempt to reargue the appeal and is utterly devoid of merit. It is, therefore, dismissed. Petition dismissed.