1988 PLP 1796 (SCMR)

‑‑S.40‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑Excise duty‑‑Refund of excess duty‑‑Time‑barred claim‑‑Writ jurisdiction, exercise of‑‑Claim for refund of excess duty rejected on ground that it was not made within prescribed time limit‑‑Liability of Department to refund excess duty, not disputed‑‑Petitioner's request for condonation of delay not having been examined on merit, order impugned in writ jurisdiction‑‑High Court's dismissal of writ petition with observation that application made in that behalf "shall be disposed of expeditiously in accordance with law, preferably within two months" impugned‑‑Plea that High Court had left matter in confusion without giving one or the other positive direction, repelled‑‑Impugned observation, held, was a positive direction to the authority to act in accordance with law and the authority was to be approached for proper relief of hearing and consideration of relevant questions‑‑Leave to appeal refused with remarks that it would also be appropriate to examine whether; regardless of any demand from petitioner, was it not duty of respondent side to discharge its obligation/ liability voluntarily to refund the admitted amount‑‑If not, whether the rule preventing them to do so, is not ultra vires the law and the Constitution. Raja Muhammad Akram, Advocate Supreme Court and Manzoor Ilahi, Advocate‑ on‑Record for Petitioner. Sajjad Ahmad Sipra, Deputy Attorney‑General and Rao M.Yousaf Khan, Advocate‑ on‑Record for Respondents. Date of hearing: 21st June, 1988. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought against the dismissal of petitioner's writ petition by the Lahore High Court, Lahore in an excise duty case. It seems from the High Court judgment and the orders impugned before the High Court that the liability of the Department to refund the excess duty paid by the petitioner, is not denied. However, the claim for this refund has been rejected mainly on the ground that it was not made within the prescribed time limit. As it further appears from the record, the request for condonation of delay was not examined on its own merit; therefore, the learned Judge in the High Court made the observation, that the application made in that behalf "shall be disposed of expeditiously, in accordance with law preferably within two months". This it seems amongst others, was one substantial reason, for the High Court to dismiss the writ petition. Learned counsel contended that the High Court has left the matter in confusion without giving one or the other positive direction. We do not agree with him. The observation noted above is positive direction to the authority to act in accordance with the law. The petitioner's writ petition, at least indirectly fructified to that extent. The Authority is now to be approached for proper relief oil hearing and consideration of the relevant questions. We may add that it would also be appropriate to examine whether; regardless of any demand from the petitioner, was it not the duty of the respondent side to discharge its obligation/ liability voluntarily to refund the admitted amount. If not whether the rule preventing them to do so, is not ultra vires the law and the Constitution. With these remarks this petition is dismissed, accordingly. M.I . / K‑65/S Petition dismissed.