1986 PLP 1731 (MLD)

An amendment was also introduced in the Rules by the respondent No.1, vide Notification, No.S.R.O. 1477 (1)/73, dated 15‑10‑1973 issued by the said respondent with prior approval of the Federal Government, which provided as follows:‑ "In exercise of the powers conferred by subsection. (4) of section 3 of the Central, Excise and Salt Act 1944, (1 of 1944), read with section 37 thereof, the Central Board of Revenue, with the prior approval of the Federal Government is pleased to direct that the following further amendment shall be in the Excise Duty on Production Capacity (Sugar) Rules, 1972, namely In the aforesaid Rules; in Rule 3 in sub‑rule (2) after the figure '14', the words letters and figures 'and a flood relief surcharge at the rate of Rs.27.50' shall be inserted."

5. Two counter‑affidavits were filed on behalf of the Collector of Central Excise and Land Custom (respondent No.?) wherein the facts stated by the petitioner were more or less admitted. However, preliminary objection was taken in respect of the maintainability of the petition as according to the said respondents, the petitioner had failed to avail the right of appeal or revision provided under the law. It was also contended that according to the notification, dated. 21‑i1‑1973, issued by the Sind Government all sugar mills in the Province of Sind had to reserve 100$ of the sugar produced by them during the crushing season 1973‑74 for sale in the manner to be specified by the Government of Sind. Therefore, it was contended that the' flood relief surcharge had, in fact been recovered by the sugar ‑mills from the consumers and as such the petitioner was not directly affected by such taxation, and consequently, it was contended that the petitioner had no cause of action to file the instant petition. This position was, however, not admitted by the petitioner, who in the rejoinder filed on its behalf once again reiterated that liability to pay production capacity tax and flood relief surcharge in respect of 4,560 tons was that of the petitioner.

6. We have heard Mr. Mansoorul Arfin, learned counsel for the petitioner, and Mr. Ubaidur Rehman, learned counsel for the respondents.

7. Mr. Mansoorul Arfin, learned counsel for the petitioner, has raised the following contentions before us. It has been, argued by him that section 3 (1) of the Act only authorises levy and collection of duties of excise and since "Flood relief surcharge" has not been defined by the Finance Ordinance as excise‑duty, the same cannot be collected under section 3 (1) of the Act. Next contention of the ‑learned counsel was that even if flood relief surcharge could be levied and collected, under section 3 (1) of the Act, the same could not be collected under section 3 (4) of the Act, 'as under section 3 (4) of the Act, the Central Board of Revenue has been authorised to levy and collect duties on the production capacity of plants, machinery etc. in lieu of levying or collecting duties of excise under section 3 (1) of the Act which could not include flood relief surcharge. Lastly, it was contended that the provisions of the Finance Ordinance, in respect of flood relief surcharge were repugnant to the Constitution.

8. Before going into Mr. Arfin's contentions, the first question to be determined in as to the maintainability of this petition. According to Mr: Ubaidur Rehman, the petitioner should have first availed the remedies of appeal or revision provided, by sections 35 and 35‑A of the Act, respectively. According to section 35 any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under the Act or the Rules made there under may file appeal to the Central Board of Revenue or a Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise, if empowered in that behalf by the Central Board of Revenue. The contention of Mr. Ubaidul Rehman quo the remedy of appeal appears to be fallacious as in the instant petition among other things, the petitioner has challenged the amendments, introduced by the Finance Act, in the Central Excise and Salt Act and notification issued by the Central Board of Revenue, dated 15‑10‑1973, therefore, how can the same be challenged in appeal before the Centred Board of Revenue, is hard to understand. However, whatever be the case, as was held by the Supreme Court in Murree Brewery Co., Ltd. v. Pakistan P L D 1972 S C 279, "the rule that the B High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but rule by which the Court regulate its jurisdiction one of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it Was wholly without jurisdiction. Therefore, failure on the part of the petitioner to file appeal cannot, be fatal for the instant petition.

9. The next objection of the respondents was that another remedy is provided by the Act in the form of revision, which could also have been availed by the petitioner. This argument also appears to be misconceived. Section 35‑A of the Act confers a sou Motu power o1 revision on the Central Board of Revenue to call for and examine the record of any departmental proceedings under the Act or the rules made there under. Without going into the question whether the Centre: Board of Revenue was empowered to exercise jurisdiction under the said provisions of law, it may be pointed out 'that where powers of suo matu revision are conferred, then no party as of right can invoke such powers. (see P L D 1967 S C 221) . For the aforesaid reasons, this petition is maintainable, as neither the provisions relating to filing of appeal or revision provided for in the Act, could be invoked by the petitioner nor its failure to invoke such 'provisions would debar it from invoking the writ jurisdiction of this Court.

10. The last objection of the respondents also appears to be wholly misconceived because, as stated in para. 6 of the petition and the rejoinder filed on behalf of the petitioner, the actual production of the factory admittedly was 35,307 tons against .its production capacity of 45,600 tons. Therefore, there was obviously a short‑fall in the production by 10293 tons. Against this shortfall, the abetment granted by the respondent No. 1, admittedly was only 5733 tons which still left a balance of 4560 tons. That being, the position, the petitioner still maintained that it had to pay due from its own resources on. 4560 tons. That being more or less an admitted position, it cannot be conceived how the petitioner might have recovered this amount from its consumers. For these reasons the last objection raised by the respondents also cannot be sustained.

11. The relevant provisions of the Act which provide for levy or collection of duty of excise or tax on production capacity in lieu of such duty are contained An subsections (1) and (4) of the Act. They provide as follows:‑ "3. (1) There shall be levied and collected in such manner as may be prescribed duties, of excise on all excisable goods, produced or manufactured, and on all excisable services provided or rendered, in Pakistan, as, and at the rates, set forth in the First Schedule."‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (4) With the prior approval of the Central Government, the Central Board of Revenue may, in lieu of levying and collecting under subsection. (1) duties of excise on excisable goods, by notification in the official Gazette levy and collect duties on the production capacity of plants, machinery, undertakings, establishments or installations producing or manufacturing such goods; and such notifications shall specify‑‑ (a) the guiding .principles for' the determination of production capacity. (b) the production capacity, as determined in accordance with such guiding principles, of the plants, machinery, undertakings, establishments or installations affected by it, (c) the duty or the rate of duty on production capacity, and (d) the manner of collection of such duty. Item No.7 in part L, section III of the First Schedule to the Act is also relevant which provided:‑ Item No. Description of goods Rate of duty ____________________________________________________

7. Sugar Sugar, all sorts Rs.68/72 per CWT.

12. Turning to the first contention of Mr. Mansoorul Arfin, he has argued that the expression "flood relief surcharge" is not synonymous with "excise duty". According to the learned counsel, no such intention was expressed by the Legislature that "flood relief surcharge" was to be collected as additional d‑qty of excise. For the sake of comparison reference was made to section 2, of the Finance Ordinance, where it has been expressly provided that "there shall be levied and collected an additional custom duty as flood relief surcharge on the goods " The argument of the learned counsel has been that section 4 of .the Finance Ordinance fails to express the intention of the Legislature in such explicit terms as section 2 thereof. Therefore, flood relief surcharge could not be levied as additional duty of excise.

13. No doubt, the language used in sections 2 and. 4, of the Finance Ordinance is not couched in similar terms, but nevertheless, it is manifest from the language used in section 4 that flood relief surcharged is to be levied and collected as additional duty of excise. Although similar words have not been used by the Legislature, as in case of custom duty, but still the intention, of the Legislature does not appear to be different. From the language used in the amendment there spears to be a clear intention that flood relief surcharge is to be levied and collected as additional duty of excise. The words "in addition to the duty leviable as aforesaid a flood relief surcharge shall be levied on sugar ." used in the amendment leave no doubt that flood relief surcharge was to be levied as additional duty of excise. The term "surcharge" according to Oxford Dictionary means extra load or charge. According to Black's law Dictionary, 4th Edition, it means "an over‑charge; an exaction, impost, or encumberance beyond what is just and right, or beyond one's authority or power " Legal Thesaurus by William. Burton defines it as "added charge, additional charge, excessive burden,, excessive charge, extra charge, extra fee, over, assessment, over burden, over charge, over load penalty".

14. According to the above definitions, "surcharge" means something additional or in excess. Therefore, the expression flood relief surcharge" cannot be construed as something distinct from excise duty. The intention of the Legislature, therefore clearly was to provide for levy or collection of an additional or excessive excise‑duty. For the aforesaid reasons, flood relief surcharge could be levied and collected under section 3(1) of the. Act and the amendment introduced by the N Finance Ordinance, in no way appears to be in excess of posers conferred, under section 3 (1) of the Act. The first argument of Mr. Mansoorul Arfin, therefore, cannot be accepted. s

15. The next argument of Mr. Mansoorul Arfin was in respect of subsection (4) of section 3 of the Act which authorises the Central Board of Revenue (respondent. No.1) with prior approval of the Federal Government, to levy or collect duty on production capacity of plants, machinery, etc. in lieu of levying or collecting excise duty on actual production of goods. The argument was, that in case the said surcharge is construed as additional duty, then the same can be levied on actual production but not on production capacity as contemplated by section (4) of the Act.

16. The argument, on the first impression appears to be attractive, because duty of excise can be levied or collected either on actual production of goods or on production capacity of plant, machinery, etc. in lieu of the actual production. However, an examination of the notification, dated 15‑10‑1973, makes it manifestly clear that "flood relief surcharge" at the rate of Rs. 27.50 was to be collected additionally as duty on production capacity besides what was already provided by Rule 3(2) of the Excise Duty on Production Capacity (Sugar) Rules, 1972. Before the issuance of the said notification, dated 15‑10‑1973, rule 3(2) reads as follows:‑ "(2) Duty shall be levied at the rate of Rs. 14 per cwt. on annual production capacity stated in the annexed schedule as determined under sub‑rule (.1) . . . . . . . "" After its amendment by notification, dated 15‑10‑1973, rule 3(2) of the above said rules then reads as follows:‑ 11(2) Duty shall be levied at the rate of Rs. 14 and a flood relief surcharge at the rate of Rs. 27.50 per cwt. on annual production, capacity stated in the annexed schedule as determined. under subrule (1) ..". The words added to rule 3(2) clearly show that Rs. 14 plus a surcharge of Rs.. 27.50 per cwt. were to be charged or levied as annual production capacity duty on production of sugar. It is, therefore, manifest that surcharge of 27.50 was merged with Rs. 14 and a consolidated amount of Rs. 51.50, per cwt. was to be charged as annual production capacity duty. No doubt, if the amount of Rs. 27.50 was to be charged or levied as additional tax, distinct and separate from annual production ‑ capacity duty of Rs. 14 per cwt. then the provisions of the Finance Ordinance would have been in direct conflict with section 3(4) of the Act. But such was not the language used in the said amendment, therefore, the amendment, dated 15‑10‑1973 introduced, fn the Rules was not in conflict with section 3(4) of the Act. The second argument of Mr. Mansoorul Arfin, therefore, must also fail. ,

16. Turning, now to the last contention of Mr. Mansoorul Arfin, it was argued by him that the provisions of section 4 of the Finance Ordinance, were repugnant to the constitution. In this respect, the learned counsel referred to entries No. 44 and 52, respectively in the Fourth Schedule to the Constitution which provide as follows:‑ "44: 'Duties of excise, including duties on salt but not including duties on alcoholic liquors opium and other narcotics, ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

52. Taxes and duties on production capacity .of any plant, machinery, undertaking establishment or installation in lieu of taxes and duties specified in entries 44, 17 , 413 and 49 or in lieu .of any one or more of them.."

17. It was contended by the learned counsel that the constitution permits levying or collection of excise duty either on actual production under entiry No. 44 or on production capacity of any plant, machinery etc. in lieu of the taxes and duties on actual production under entry No. 52 in the Fourth Schedule to the constitution. The learned counsel thus attacked the amendments in the Act ahd the Rules introduced by the Finance Ordinance and the notification, dated 15‑10‑1973, respectively as according to the learned counsel both purported to impose an K additional duty .which was distinct and separate from excise‑duty and .not contemplated by the said entries in the Fourth Schedule to the Constitution.

18. This argument equally appears to be without force. In fact, it once again raises the same question which has already been answered by us. As we have already stated that the flood relief surcharge is not an additional duty or burden but the same merges with excise duty or duty leviable on production capacity. The amendments, therefore, cannot repugnant to the Constitution. The reasons‑are the same as we have already stated above. The amendments are, therefore, intra vires the Constitution.

19. As a result, we find no force in this petition and the same is hereby dismissed. In view of the circumstances of the case, the parties are directed to bear their own costs. M.Y.H. Petition dismissed.