1992 PLP 1838 (CLC)

TANVIR AHMED KHAN, J.‑The petitioner is a public limited company incorporated under the Companies Ordinance, 1984 having its registered office at Lahore. It is aggrieved of a Notification dated 3rd June, 1989 issued by Federal Government under subsection (1) of section 12‑A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) whereby earlier Notification dated 29‑8‑1985 issued under the Act granting exemption to the new sugar mills in the payment of excise duty was withdrawn/rescinded. Facts briefly are that the Federal Government by its Notification No.SRO 814 (1)/85, dated 29‑8‑1985 granted exemption of 50% in the payment of excise duty on the sugar produced by the new sugar mills for the first two year commencing from the date of their operation. It was also provided that if the new sugar mills had already paid the amount that would be adjusted towards the payment of excise duty on their production during the period mentioned therein. It is averred that the sponsors of the petitioner company induced by this incentive, got incorporated Chishtia Sugar Mills on 27‑1‑1986 with its head office at Lahore. The mills became operational and stated its production on 14‑2‑1990. Learned counsel for the petitioner has argued that the Federal Government through the impugned Notification dated 3rd June, 1989 has withdrawn the concession granted earlier through notification dated 29th August, 1985 in an arbitrary manner. It was argued that the operation of the mill as envisaged in the notification dated 29th August, 1985 started with the incorporation of the Company, as such a valuable right in these circumstances accrued to the petitioner, and the same cannot be taken away arbitrarily without providing any opportunity of hearing. Learned counsel further argued that the liability to pay excise duty on goods is to be determined with reference to the time of its production and for this purpose the date of manufacture of sugar would be relevant and not the date when the sugar is taken out of mills as relied upon by the respondents. He emphasised that the central excise duty is charged on manufacture of goods and that the distinction between "chargeability" and "collection" of Excise Duty has to be kept in view. He added that the petitioner acquired a vested right which has been taken away in a most arbitrary manner in clear violation of the principle of natural justice. In support of his claim he has relied upon PLD 1969 SC 407 "Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh". Learned standing counsel on the other hand argued that section 12‑A of the Act read with section 21 of the General Clauses Act has conferred unfettered power upon the Federal Government to withdraw benefit or exemption so offered or granted. Section 3‑C of the Act was also pressed into service to contend that the excise duty would be leviable not on the date of manufacture of goods but on the date on which the goods are cleared for export or for home consumption. Learned Standing Counsel has furth6r argued that the impugned concession/exemption was withdrawn through the impugned Notification before the petitioner mills started functioning, as such the petitioner cannot claim any exemption on the basis of the same. We have considered the respective contentions. The questions that fall for determination in this case are whether the petitioner is entitled to the exemption in the payment of excise duty as provided by Notification No.SRO 814 (1)/85, dated 29‑8‑1985. If the answer is in the affirmative, whether the exemption/concession so extended could validly be rescinded by Federal Government through impugned Notification dated 3‑6‑1989. Both the Notifications referred to above are re‑produced below:‑‑‑ "SRO 814 (I)/85:‑‑‑In exercise of the powers conferred under sub section (1) of section 12‑A of Central Excises and Salt Act, 1944 (I of 1944), the Federal Government is pleased to exempt new sugar mills, which commenced operation during 1982‑83 crushing season or t hereafter or which may commence operation hereafter, from payment of fifty per cent of Central Excise Duty leviable on their production of first two years commencing from the date of operation. (2) The new sugar mills which commenced production during 1982‑83 and1983‑84 and which have already paid excise duty on the first two years of their production of sugar will be entitled to refund/adjustment of duty in such a manner that fifty per cent of the total amount of such refund/adjustment will be made against the duty payable by them during 1985‑86 and fifty per cent against' the duty due from them during 1986‑87. "SRO 556 (1)89:‑‑In exercise of the powers conferred by subsection (1) of section 12‑A of the Central Excises and Salt Act, 1944 (I'of 1944), the Federal Government is pleased to rescind its Notification No.SRO 814 (1)/85, dated 29th August, 1985 with immediate effect." The main requirement to avail the concession/exemption appears to be that the new sugar mills must have gone into operation. The moment it becomes operational it is entitled to exemption of 50% excise duty. The petitioner in this case was set up/incorporated on 27‑1‑1986 under the name of Chishtia Sugar Mills with its head office at Lahore after coming into force of the Notification dated 29‑8‑1985 which generated incentive to the new entrepreneur coming into the field of sugar. However, on the own showing of the petitioner the mill went into production on 14‑2‑1990 and by that time the Notification granting incentive of exemption was not in the field. The reading of the first para of this Notification makes it clear that the main requirement to avail the concession is that the new sugar mill must have become operational and should have started producing the sugar during the currency of the Notification dated 29‑8‑1985. In the case in hand the petitioner mill never became operational during the currency of the Notification. The learned counsel has admitted that the mill started the production of sugar on 14‑2‑1990 and by this time the Notification dated 29th August, 1985 was already rescinded, as such the petitioner cannot lay any claim for exemption/concession in the payment of Excise Duty. This being the position we are of the considered view that the petitioner‑Company is not entitled to the exemption for the payment of duty on the production of sugar as provided in Notification No.SRO 814 (1)/85, dated 29th August, 1985 because it never became operational during the currency of the Notification. Accordingly, without going into any other question this writ petition is dismissed with no order as to costs. AA./C‑7/L Petition dismissed.