P L D 1980 Karachi 205 (PLP)

Am MUHAMMAD Y. AKHUND, J.-This judgment will also dispose of Constitutional Petition No. D-910 of. 1979.

2. Plastic goods were subject to payment of excise duty under item 32 of the First Schedule to the Central Excise and Salt Act, 1944. By Notification No. SR. 2(1);78 dated 1st January, 1978, these goods were exempted from payment of excise duty. But Sale Tax in respect of these goods is, however, payable under the Sales Tax Act, 1951. By Notification No. 50/19CET/78 dated 11th October, 1978, sale tax is made recoverable in the same manner as duty of excise, by virtue of second proviso to subsection (4) of section 3 of the Sales Tax Act, 1951. Consequently, the Central Boatd of Revenue has directed the Central Excise Staff to be posted in the factories of plastic goods which are exempted from excise duty. Petitioners have challenged this decision to post excise staff as illegal and ultra vires.

3. Second proviso to subsection (4) of section 3 of the Sales Tax Act, 1951, which empowers Board of Revenue to direct that the sales tax be recovered in the same manner as the duty of excise would have been payable, had the goods been not so exempt, reads "Provided further that, in the. case of goods specified is the Schedule to the said Act which are for the time being exempt front the payment of the duty of excise, the tax shall where the Board so directs be payable at the same time and in the same manner as the duty of excise would have been payable had the goods not been so exempt." In pursuance of this Second Proviso, the Central Board of Revenue issued Notification No. 50/19/SET,/78 dated 11th October, 1978, directing that sale tax, in respect of goods exempt from excise duty, shall be payable in the same time and in the same manner as the duty of excise would have been payable had the goods not been exempt. Notification reads: "In exercise of the powers conferred by Second Proviso to subsection (4) of section 3 of the Sales Tax Act, 1951 (111 of 1951), the Central Board of Revenue is pleased to order that in the case of goods specified in the first schedule to the Central Excises and Salt Act, 1944, (I of 1944) which are for the time being exempt from the payment of the duty of excise, the sales tax shall be payable at the same time and in the same manner as the duty of excise would have been payable, had the goods not been exempt. This order will come into force with effect from 1st November, 1978." The result is that the sale tax in respect of plastic goods, which are exempt from excise duty, shall be payable at the same time and in the same manner as the duty of excise would have been payable. The mode of collection of excise duty is provided in the Central Excise Rules, 1944. The Sale Tax on plastic goods, is, therefore, to be collected in accordance with the procedure laid down in the Rules, ibid.

4. The Central Excise Rules contain two systems of collection of duty-one is the normal procedure, that is, supervised clearance under rule 9 of the Central Excise Rules, and the other is special procedure, that is self-clearance system under Chapter XV of the Central Excise Rules. Under rule 235 of the Central Excise Rules, plastic goods are excluded specifically from the provision of self-clearance procedure, and, they are under system of supervised clearance. In case of supervised clearance provision of rules 952 and 52-A of the Central Excise Rules, 1944, have to be followed. Rule 9 deals with the time and manner of payment of duty. Rule 52 deals with clearance on payment of duty. Rule h-A provides that the goods removed on payment of duty or otherwise from place of storage shall be covered by a Gate Pass prepared in triplicate, original of which shall be collected at the Factory Gate by the Central Excise Staff posted at the Factory. Rule 229 of the Central Excise Rules provides for accommodation at factory or warehouse for use of the officers in attendance at the factory.

5. It follows, therefore, that decision to post the Central Excise Staff in the Plastic Factories for the recovery of sales tax, is not without lawful authority.

6. In Constitutional Petition No. 910/79 plastic goods were seized by the Central Excise Staff from the premises of the petitioner because the petitioner refused to accept the service of notice as stated in para 6 of the counter-affidavit. The Deputy Attorney-General urged that seizure of goods was lawful under sub-rule (6) of rule 52-A of the Central Excise Rules. Subrule (6) reads:- ' "If any goods are removed or are being removed or are being loaded for removal from the store-room or other place of storage mentioned in sub-rule before a Gate Pass in respect of such goods has been prepared and completed in all respects in the prescribed manner, the manufacturer shall be liable to a penalty which may extend to two thousand rupees or ten times the duty chargeable on such goods, whichever is greater, and the goods in respect, of which an offence has been committed shall be liable to confiscation."

7. There is no allegation in the counter-affidavit that the plastic goods, which were seized, were removed, or were being removed or were being loaded for removal from the place of storage. The seizure was not, B therefore, lawful, and goods seized be released on payment of sales tax. M Y. M.?????????? Order accordingly.