2005 PLP 1413 (PTD)

The petitioner appears to be aggrieved by the order in revision, dated 27-7-1991, whereby the respondent No.1 dismissed the revision application moved by the petitioner, calling in question the levy of Central Excise duty on white cleaners and starlight cleansers, manufactured by them as detergents subject to levy of Central Excise duty under Item No.04.05.B of the First Schedule to the Central Excise Act. By way of necessary background it may be stated that initially Central Excise duty on the aforesaid goods was claimed by the respondents under the then Item No.23 of the Schedule under the category of soaps. The petitioner had questioned the respondents' demand through a Civil Suit No.233 of 1966 before the IIIrd Senior Civil Judge First Class, Karachi, which was decreed on 13-5-1982 and the product manufactured by the plaintiff/petitioner was found not to come within the definition of soap contained in Item No.23 of the then Schedule to the Central Excise and Salt Act. It seems that though the judgment of the Civil Court was not questioned by the respondents in appeal and had become res judicata, the law was subsequently changed and a new Item No.29 was provided in the Schedule whereby detergents were separately liable to payment of central excise duty. Thereafter when a fresh demand notice was issued on 14-2-1983, whereby the respondents claimed Central Excise duty on detergents manufactured by the petitioner, the petitioner questioned the aforesaid demand before this Court through constitution Petition No.D-320/1983, which came to be dismissed by a Division Bench through an elaborate order, dated 24-5-1983. It was held that the Civil Court had decreed the petitioner's suit on the basis of the definition of soap given in Item No.23 and there was no issue relating to Item No.29 before the Court. After amendment of the schedule whereby the definition of soap and detergent has been changed, the decree based on Item No.23 would not govern the case and petition was dismissed. It may also be pointed out that an application to execute the decree of the Civil Court was also dismissed by the learned Senior Civil Jude on the ground that after the change of the Schedule to the Central Excises Act, the decree had become unexecutable. Through the present petition the petitioner has challenged the levy of duty on the same detergents that were subject to duty in Constitution Petition No.D-320 of 1996 and it is not the petitioner's case that the said products are not covered by Item No.04.05 of the Schedule to the Act. In the circumstances, we are clearly of the view that this petition is barred by res judicata and is, therefore, dismissed. M.B.A./P-31/K Petition dismissed.