P L D 1983 Peshawar 112 (PLP)

Zahurul Haq, A.‑G. for Respondent No.

1. Mansoor Ahmad Khan for Respondent No.

2. This writ petition has arisen in the following circumstances: Respondent No. 2 is Messrs ASLO Electric Industries Ltd. Hub Karachi. It manufactures electric bulbs and fluorescent tubes of various watts. By notification dated 12‑9‑82 (Annexure A) issued in exercise of the powers under subsection (1) of section I2‑A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act of 1944), the Federation of Pakistan through Ministry of Finance, Islamabad (respondent No. 1) exempted the electric bulbs and fluorescent tubes manufactured during the period commencing on the 4th September, 1982, and ending on the 3rd September, 1983, by respondent No. 2 from the whole of the duty leviable thereon under the Act of 1944. This notification was, however, superseded by another notification dated J‑10‑82 (Annexure B) which is to the following effect :‑ "SRO‑(1)/82.‑In exercise of the powers conferred by subsection (1) of section 12‑A of the Central Excises and Salt Act, 1944 (1 of 1944), and in supersession of its Notification No. SRO 871(1)/82, dated the 12th September, 1982, the Federal Government is pleased to exempt electric bulbs and fluorescent tubes manufactured in the factories which have gone into production and are located in the areas where natural gas is not available and the factories are using furnace oil and liquified petroleum gas and are not using natural gas, during the period commencing on the 4th September, 1982, and ending on the 3rd September, 1983, from the whole of the duty leviable thereon under the said Act." The petitioner/factory feels aggrieved by the above action of the Govern ment (respondent No. 1), therefore, it has filed the present writ petition and it is urged that there was no jurisdiction for the Government to allow discrimination between the petitioner/factory and respondent No. 2/Factory inasmuch as both the petitioner/Factory and respondent No. 2/Factory manufacture electric bulbs and both are equally entitled to exemption from duty leviable under the Act of 1944 for their manufacturing electric bulbs and fluorescent tubes. The prayer of the petitioner/Factory therefore, is that the notification dated 4‑10w82 issued by respondent No. 1 may be declared as illegal, mala fide and without jurisdiction and the said respondent may be called upon to disclose the reasons and basis for creating dis crimination between the petitioner/Factory and respondent No. 2,/Factory. In support of this petition, we have heard Mr. S. M. Zaffar, the learned counsel for the petitioner/Factory at some length. The main emphasis of his arguments is that by the impugned action respondent No. 1 has benefited a particular company and the other companies which also deserve same treatment were ignored, therefore, the impugned action cannot be sustained in law. He referred to the first notification dated 12‑9‑82 (Annexure A) to show that respondent No: 1 had particularly exempted respondent No. 2/Factory from duty for its manufacturing the electric bulbs and fluorescent tubes and, as thereafter it occurred to respondent No. 1 that their such action was arbitrary in favour of respondent No. 2/Factory, it issued another notification dated 4‑10‑82 to show that their intention was not particularly for the benefit of respondent No. 2/Factory but it was to exempt those Factories from duty to which they are entitled. The learned counsel urged that the intention of respondent No. 1 is obviously mala fide and for certain personal reasons to benefit respondent No. 2/ Factory. The whole attempt of the learned counsel for the petitioner/ Factory in this behalf was that if the Government (respondent No. 1) bad the intention to exempt from duty the deserving Factories, it would not have issued the first notification dated 12‑9‑82 (Annexure A) in the name of respondent No. 2/Factory to exempt it from duty. He also contended that legally the first notification dated 12‑9‑82 (Annexure A) cannot be given retrospective effect by the second notification dated 4‑IC‑82 (Annexure B). He further contended that the prices of various watts of bulbs are the same in the country, therefore, according to him, there was no justification for respondent No. I to grant exemption to respondent No. 2/Factory for its manufacturing the bulbs and fluorescent tubes and to deny it to other Factories for their manufacturing the said articles. We consider that the above contentions of the learned counsel for the petitioner/ Factory are not compatible and conducive to the real situation obtaining in the case of respondent No. 2/Factory. It is not controverted that respondent No. 2/Factory is running their Factory by using furnace oil and liquified petroleum gas for manufacturing its articles while the petitioner/ Factory is using gas for manufacturing their articles. Not a single instance was shown to us by way ref placing material on the record of the present proceedings that the prices for using furnace oil and liquified petroleum gas and the prices for using natural gas are the same. We have, therefore, no doubt in our mind that the Government exempted from duty respondent No. 2/Factory for their manufacturing electric bulbs and fluorescent tubes, as it is using furnace oil and liquified petroleum gas which incurs more expenses as compared to natural gas. There is a plethora of authorities in support of the proposition that Government may exempt any goods or class of goods from levy of excise duty on any terms and conditions and in this behalf, we would refer to on such authority of the Supreme Court in the case of Messrs Amin Soap Factory v. Government of Pakistan and others (I). As it is not denied that respondent No: 2/Factory is using furnace oil and liquified petroleum gas which is costly and the petitioner/ Factory is using natural gas which is cheap, we do not understand as to how can it possibly be argued that respondent No. 1/ Government has created discrimination between the petitioner/ Factory and respondent No. 2/Factory or for that matter respondent No. 1/Govern ment has for personal reasons benefited respondent No. 2/Factory. This brings us to deal with the contention of the learned counsel for the petitioner/Factory that legally a notification cannot be retrospective in operation. By this contention, what he conveys is that by the second notification dated 4‑10‑82, respondent No. 1. could not give effect to the first notification dated 12‑9‑82 exempting respondent No. 2/Factory from duty for a period of one year from 4‑9‑82 to 3‑9‑

83. We regret to agree with him in the facts and circumstances of the present case. It is clear to us that respondent No. I had not highlighted its real intention underlying the first notification dated 12‑9‑82, therefore, in order to allay any confusion and doubt about the purpose of the said notification, it issued the second notifica tion dated 4‑10‑

82. In other words, the second notification appears to us to be in the nature of a corrigendum. To our mind, this view is a plausible view in the facts and circumstances of the present case. There can be no quarrel with the proposition that legally a competent authority can in any matter issue a corrigendum to magnify its intention behind the first notification which has or is likely to cause confusion and misunderstanding. We, there fore, hold that in this behalf the contention of the learned counsel is technical rather than real. For the reasons stated above, we see no force in this writ petition. It is accordingly dismissed in limine. M. A. K. Petition dismissed.