2003 PLP 1002 (PTD)
Messrs LUCKY CEMENT LIMITED Versus C.B.R. and others
| Citation | 2003 PLP 1002 (PTD) |
| Forum / Court | Peshawar High Court |
| Bench Members | Abdur Rauf Khan Lughmani and Shahzad Akhter Khan, JJ |
| Parties | Messrs LUCKY CEMENT LIMITED Versus C.B.R. and others |
Q1: What are the key laws and sections cited in 2003 PLP 1002 (PTD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2003 PLP 1002 (PTD)?
The case was heard and decided by the Peshawar High Court bench comprising: Abdur Rauf Khan Lughmani and Shahzad Akhter Khan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2003 PLP 1002 (PTD) (Messrs LUCKY CEMENT LIMITED Versus C.B.R. and others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Abdul Latif Yousaf Zai for Appellant.
Headnotes / Summary
(a) Central Excises Act (I of 1944)‑‑‑ ‑‑‑‑Ss.4(2) & 2(1)(7)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Levy of excise duty on basis of retail price‑‑ Retail price inclusive cat taxes and charges‑‑‑Retail price whether includes excise duty‑‑‑Validity‑‑‑Ingredients of retail price as given in S.4(2) of the Central Excises Act, 1944 were that it would be fixed by the manufacturer; that it would be the price at which the goods brought were to be sold; that if more than one such price was fixed for the same brand the highest of such price and that it would include all charges and taxes but not the sales tax‑‑‑Charges would mean and include the move spent by the manufacturer himself or any intermediary of the manufacture‑‑‑Packing, repacking transport, advertising etc. were included‑‑‑"Tax" had been used and was to be taken as a tax whether of Central or Provincial Government‑‑‑Terms used and invogue were tax, charge, fee and duty for revenue realization‑‑‑Legislature was fully aware of these terms and in S.4(2) for inclusion in the retail price two terms namely "charges" and "taxes" had been used‑‑‑Word `duty' had not been used and such omission was significant so as to indicate intention of the law makers‑‑‑If the intention was to include excise duty in the retail price it could have been easily done by adding "duty" or `excise duty'‑‑‑If the retail price included `duty' that would amount to double taxation which indeed was not the intention of the law‑‑‑Object was to impose excise duty once and not twice‑‑‑Fiscal statutes were to be interpreted liberally in favour of the subject‑‑‑Respondents agreed in principle that no excise duty could be levied or collected on excise duty‑ Object of the Central Excises Act, 1944 or for that matter S.4(2) thereof was not double taxation‑‑‑Excise duty was not to be treated as part of retail price for the purpose of duty of excise payable under the Central Excises Act, 1944‑‑‑System of realization of duties of excise on the `retail price' conclusive of excise duty was illegal and without lawful Authority‑‑‑High Court, in circumstances, allowed the Constitutional petition. (b) Central Excises Acct (I of 1944)‑‑‑ ‑‑‑‑S.4(2)‑‑‑`Charge' and `tax'‑‑Connotation‑‑Charge means and includes the money spent by the manufacturer himself or any intermediary of the manufacture‑‑‑Packing, re‑packing, transport advertising etc. are included in the charge‑‑‑`Tax' has been used and it is to be taken as a tax whether of Central or Provincial Government. (c) Interpretation of statutes‑‑‑ ‑‑‑‑ Fiscal statutes are to be interpreted liberally in favour of the subject.
Judgment & Decree
Rs.169.25 (ii) 40% Excise Duty on it is Rs.67.70. (iii) Retail price per bag excluding Excise Duty Rs.101.55 (iv) Percentage of Excise Duty actually charged. Rs.66.67 Although, as stated earlier the Excise Duty levied by the respondents is 40% but in fact they are charging @ 66.67%. The calculation will be different if Excise Duty is calculated without including Excise Duty in the retail price. The position becomes as under:‑‑‑ 7(i) Declared retail price, including Excise Duty, per bag is Rs.169.25 (ii) Retail price per bag excluding Excise Duty Rs.120.89 (iii) 40%'Excise Duty on it would be Rs.48.36 (iv) Percentage of Excise Duty paid. Rs.40%
4. Learned counsel for the respondents argued that the petitioners are showing Excise Duty as part of retail price and thus the duty is to be charged on the said retail price inclusive of Excise Duty. However learned counsel for the respondents as well as Law Officer of the respondents agree in principle that no excise duty can be levied or collected on excise duty. It is on the insistence of the respondents that the petitioners have to include in the retail price Excise Duty and for this very reason they have filed writ petitions so as to pay Excise Duty on retail price inclusive of all charges and taxes, but not the sale tax and the excise duty. The object of the Excises Act, 1944 or for that matter section 4(2) thereof is not double taxation. Introduction of retail price was to stablize prices and to prevent price hike. For the reasons we are of the view that Excise Duty is not to be treated as part of "retail price" for the purpose of duty of excise payable under the Central Excises Act of 1944. For the reasons we accept the petitions declare, that present system of realization of duties of excise on the "Retail Price" inclusive of excise duty is illegal and without lawful authority, the duties of excise on cement must not form part of retail price and the petitioners are not liable to pay duties of excise forming part of the retail price of cement. S.M.A.H./638/P Petition accepted.