2006 PLP 1169 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide three constitutional petitions i.e. W.P. No.14573 of 2003, W.P. No.14574 of 2003 and W.P. No.2457 of 2004. Earlier two petitions are by Fecto Sugar Mills Limited, whereas the third has been filed by Kohinoor Sugar Mills Limited, assailing the orders dated 27-3-2003 and 20-5-2003 in the earlier petitions and orders dated 8-4-2003 along with 28-10-2003 in the latter petition, by the Cane Commissioner and the Secretary, Food Punjab, to be declared illegal, void and of no legal consequence, whereby in exercise of powers under rule 5(1) of the Punjab Sugarcane (Development) Cess Rules, 1964, outstanding Sugarcane Cess along with penalty amount, was ordered to be recovered and appeals of the petitioners were dismissed, respectively.

2. Succinctly relevant facts as deciphered from the impugned orders are that in all the three cases the petitioners (Sugar Mills) were found in default of payment of Sugarcane Cess payable to the Government of the Punjab under section 12 of the Punjab Finance Act, 1964 but instead was being paid to the Government of N.-W.F.P. Mills premises being located within the territory of Punjab, the petitioners had been purchasing/collecting sugarcane from the adjoining Districts of the N.-W.F.P. on account of non-availability of enough sugarcane to meet the crushing capacity of the Mills from their own districts. All the petitioners claimed that they had been depositing the Cess (growers' share) in Treasury of D.I. Khan (N.-W.F.P) as per instructions of the Cane Commissioner, N.-W.F.P., at the rate leviable in that province and according to them, it was being done under the directions of D.C./Additional Cane Commissioner, Bhakkar endorsing the directions/instructions of Cane Inspector, Government of N.-W.F.P., which was endorsed to Cane Commissioner, Punjab, as well.

3. The Punjab Sugarcane (Develop?ment) Cess Rules, 1964 provided the criteria of collection of the Cess and its deposit. Section 12 of the Punjab Finance Act, 1964 prescribed levy of Cess on Sugarcane crushed by the Sugar Mills at the rate of 56 per hundred kilograms or part thereof and this Cess was to be shared equally by the sugar mills and persons selling the sugarcane to the mills (the growers) and was to be collected in the manner prescribed i.e. the above referred Rules, of which rule 3(2) reads as under:-- "The mill management shall contribute the portion of the cess recovered from the seller under sub rule (1) an equal amount and deposit the total amount of the cess together with the whole of the cess due in respect of any quantity of cane obtained from the Mill's own Sugar Farms or from the Farms of the occupier of the factory in the nearest Government Treasury in the manner prescribed in sub-rules (3) and (4)."

4. The primary question, which hinges for determination is that in the given circumstances, all the three mills which are located within the area of Punjab Province and had been paying Sugarcane Cess to N.-W.F.P. Government (another Province) was complying with the relevant provisions of law. A bare perusal of section 12 of the Punjab Finance Act, 1964 puts the controversy to rest whereunder the Cess is payable on actual sugarcane crushed by the sugar mills and not on the sugarcane purchased/collected or brought to the mills. Sugarcane brought from whatever place whether from the Province of the Punjab or from the N.-W.F.P. would have been liable to cess at the time of its crushing and the rate of cess will be determined according to the rate chargeable within the area where it was being crushed. So purchase and bringing of the sugarcane from N.-W.F.P. was of in material consideration and if the petitioners paid cess to N.-W.F.P. Government, under any misunderstanding, any order of the Cane Inspector, or by virtue of concurrence by the Deputy Commissioner/Additional Cane Commis?sioner Punjab or Cane Commissioner Punjab, would not inject any validity to any deposit or act done without .any lawful sanction behind it. There is no provision in the Finance Act, 1964 or the Rules framed thereunder equipping any official to direct deposit of the Cess payable to one Province, in some other Province.

5. As against the rate of Sugarcane Cess payable within the Province of the Punjab, which was Rs.1.63 per 37.3254 kg., this rate in N.-W.F.P. (D.I. Khan) was 25 paisas per 37.3254 kg., wherein, the growers were sharing 1/2 amount equal to 12.5 paisas per 37.3254 kg. Apparently, the Cess payable in N.-W.F.P. was much less to the one payable in the Punjab. Apparently, the petitioners had been depositing sugarcane cess in the N.-W.F.P. treasury taking unwarranted refuge of an illegal order of the Cane Commissioner of N.-W.F.P., with a view to take monetory advantage of difference of rate of Cess in the two provinces. Since the petitioners were liable to pay sugarcane to Government of the Punjab, they were correctly issued a show-cause notice by the Sugarcane Commissioner Punjab, through his impugned order dated 8-4-2003 who rightly worked out the liability payable by the petitioners along with imposition of penalty, taking a lenient view by charging it at the rate of 51% instead of 100% under rule 5(1) of the Rules (ibid). Similarly on appeal, the Secretary Food, Government of the Punjab, eminently found the petitioners liable to pay the Sugarcane Cess for the mentioned period but he went further mild to reduce the penalty to 33% in the case of Kohinoor Sugar Mills but maintained the same in the case of Fecto Sugar Mills. 7. (sic) For the reasons noted above, I am not persuaded by the arguments by the learned counsel for the petitioners that the impugned orders were sketchy/non?speaking and respondents did not assign reasons in support of their orders or before the imposition of penalty they should have been heard in support of their cases, that the default, if any, by them was not wilful as they had been paying the Cess under orders of the Cane Commissioner of N.-W.F.P. The impugned orders besides being reasoned, could not be shown to be illegal, arbitrary/fanciful or perverse, thus, the same being in accordance with law and having been passed within the ambit of conferred jurisdiction, cannot be interfered/substituted in the constitutional jurisdiction of this Court, on the petitions under determination, thus, the same being devoid of any merit, are dismissed with no order as to costs. F.M./F-130/L????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.