1981 PLP 177 (PTD)

(a) imported, exported or transported in accordance with the provisions of section 16 ; or (b) manufactured or cultivated under any license granted under sec tion 20 ; or (c) manufactured in any distillery established, or any distillery or brewery licensed under section 21 :‑‑‑ Provided as follows :‑ (i) Duty shall not be so imposed on any article which has been imported into Pakistan and was liable on importation to duty under the Traffic Act, 1894, or the Sea Customs Act, 1878. Now Customs Act (IV of 1969) which came into operation from Ist January, 1970. (ii) Omitted. It is to be seen that under the proviso only that article is exempt from excise duty which has already been subjected to duty under the Tarrif Act and the Sea Customs Act, on its importation. The expression "so imposed on any article" has reference to the levy on the excisable article. The term "excisable article" as per section 3(6) means (a) any alcoholic liquor for human consumption , (b) any intoxicating drug ; or (c) and medicinal or toilet preparation containing alcohol ; it cannot be claimed that the imported concentrates are "excisable article". The concentrates would qualify 'for exemption only if these could be categorized as 'excisable article'. Union the wording of the interpretation clause, such a claim however, cannot be endured.

7. It is well established that a proviso is subordinate to the main section and as held in East & West Steamship Company v. Pakistan P L D 1958 S C (Pak.) 41: "the effect of a proviso is to except something out of the proceeding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it." It is thus obvious that under the proviso, only the excisable article on which import duty may have beers paid, is intended to be taken out of the per view of the charging provisions of section

31. A reference to rules 9.92 9.105 (Volume II) and rule 11.37 (Volume II) of the. Punjab Excise Manual would show that the petitioner's reliance on these rules is misplaced and these rules do not in any manner, advance its cause for exemption or the refund of the duty already collected.

8. There is also no warrant for the claim for allowance to the extent of the duty already paid on the concentrates. The imported concentrates, as already observed, constitute one .of the elements of the excisable article manufactured by the petitioner. By the manufacturing process, something new is brought into existence, by the petitioner which is different from the one already existing namely concentrates. Our attention has not been drawn by the learned counsel to any provision of law that if one of the ingredients of the excisable article, on its importation, is duty paid, the distillery would earn rateable exemption in the excise duty, chargeable on such excisable

9. As born out from Annexure `F' of the Writ Petition No. 2422/76 the petitioner has asked for refund of the amounts collected from it between the years 1962 and 1976. This writ petition was filed on 6‑10‑1976. We are of the view that the writ petition it respect of all the claims enlisted in Annexure 'F' except the one relating to the year 1975‑76 suffers from laches.

10. It may also be added that by our judgment delivered in Writ Petition No. 627/68 and other connected petitions, which were heard alongwith these writ petitions, we have upheld the validation of the West Pakistan Duty on Excessive Wastage of Spirit in Distilleries (Validation) Ordi nance, 1969.

11. As all the contentions raised by the petitioner's learned counsel have failed, both the writ petitions are dismissed with costs. Appeal dismissed.