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Constitutional Petition No. D-244 of 1979, decided on 15th January, 1986.

---R.12-A--Central Board of Revenue letter dated 14-4-1977--Constitution of Pakistan (1973), Art. 199--Excise duty Additional duty, waiver of--Letter neither classifying different sets of parties nor debarring any party to move application for waiver of amount if it could satisfy Central Board of Revenue that the amount was liable to be refunded--Objection that no amount of additional duty was outstanding against petitioner therefore, his request for waiver of additional duty could not be entertained, held, had no force- Application of the petitioner could not be rejected merely on ground that he had already made the payment.

H.A. Rahmani for Petitioner.

Syed Inayat Ali for Respondents.

Date of hearing: 14th January, 1986.

--The Superintendent Central Excise and Land Customs Karachi demanded additional duty at the rate of 10% from the petitioner. The petitioner challenged the said order before the Assistant Collector, Central Excise and Land Customs who rejected the same. The petitioner filed appeal against the said order before the respondent No.3 who also dismissed the same on 18-8-1976. A revision petition was also filed before the respondent No.2 which was also rejected. In the case of a number of Textile Mills the Central Board of Revenue took up the matter for the waiver of the duty and issued letter Annexure 'B' dated 14-4-1977. The petitioner after the issuance of this letter also submitted application for the waiver of additional duty, both on cotton fabrics and cotton yarn, but the request of the petitioner was rejected on the ground that as no amount of additional duty was outstanding against the petitioner the question of its waiver does not arise. The respondents have alleged that as the petitioner had paid the last amount of additional duty on 25-2-1976, therefore, the letter dated 14-7-1977 is not applicable. The offer made in this letter is to the effect that the Central Board of Revenue shall waive the additional duty demanded by the Central Excise Department on account of delay in payment of statutory duty provided the entire arrears of duty outstanding against the mills were cleared by 30-6-1977. As no additional duty was outstanding against the petitioner therefore his request was turned down.

2. We have heard the learned counsel for the petitioner and Mr. Syed Inayat Ali for the respondent. It is the case of the respondent that the order was passed keeping in view the fact of hardship and adverse conditions obtaining in the textile sector at that time as put forth by the Textile Association. It was decided to condone the delay in payment of outstanding duty. The contemplated waiver of additional duty was applicable to individual units if they were not in a bona fide condition of paying the same and if they paid all the arrears. There was no demand against the petitioner when the letter was issued.

3. It is contended by the learned counsel that the letter dated 14-4-1977 did not lay down any classification between the mills "V i1o had paid the additional duty and the mills who had not paid the duty.

In order to appreciate this contention it is necessary to refer to the letter dated 14-4-1977 Annexure 'B'. According to this letter the Central Board of Revenue decided to waive the additional duty demanded by the Central Excise Department on account of delay in payment of statutory duty provided the following two conditions are fulfilled:

(i) The entire arrears outstanding against the mill are cleared by 30-6-1977; and

(ii) the cause of delay in payment of statutory duty is satisfactorily explained.

It is further provided that if any mill is ready to avail of this opportunity, it may send an application to the Central Board of Revenue for consideration furnishing the following information:

(i) Amount of statutory duty involved;

(ii) Due date (s) of payment of statutory duty;

(iii) Date(s) on which the statutory duty was actually paid;

(iv) Amount of additional duty demanded;

(v) Reference Number and date of demand notice. Order-in-original, Order in Appeal, Order in Revision or order of the Court regarding the payment of additional duty.

4. A bare perusal of this letter would make it clear that there was no classification mentioned by the authorities regarding the different sets of the parties. Additionally this letter does not debar any party to move an application for waiver of the amount if it could satisfy the Central Board of Revenue that the amount is liable to be refunded. The eligibility of waiver is something different than the entitlement of a party to claim for the waiver of additional duty. The only objection raised by the respondent is that no amount of additional duty was outstanding against the petitioner and therefore, his request could not be entertained. This contention has no force. In fact the authorities had tried to discriminate between the two groups of the mill owners; first who had promptly complied with the orders of the authorities against the second who had failed to make the payment. The assumption that the petitioner had made the payment prior to the impugned order according to us, is of no effect as the petitioner had submitted the application and gave certain reasons in support of such application. The application of the petitioner could not be rejected h merely on the ground that he had already made the payment. If the conditions laid down in this letter dated 14-4-1977 (18-4-1977) are satisfied then the application should be entertained.

5. In the result we accept this petition and remand the case to the respondent No.2 to consider and decide on merits the claim of the petitioner .for the waiver of the additional duty. There would be no order as to costs.

M.A. K. /S-71/ K Petition accepted.

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