Through this Constitutional petition, the petitioner has prayed as follows:--
(i) that by declaring orders dated 4-12-2001 and 24-4-2002 passed by Director, Excise and Taxation, Lahore and Rawalpindi Division, Rawalpindi, be declared to be illegal, the entertainment duty may not be levied and charged from the petitioner under section 3 of the Punjab Entertainment Duty Act, 1958;
(ii) that the amount of duty already received by respondent No,2 (Director Excise and Taxation, Rawalpindi Division, Rawalpindi) from 1-7-2000 which was paid by the petitioner be refunded to him.
2. The brief facts for disposal of the present writ petition are that petitioner Messrs Parks Pakistan (Pvt.) Ltd. (Bansra Galli Chair-lift, Murree) had been paying entertainment duty in respect of chair- lift under its control under the provision of section 3 of the Punjab Entertainment Duty Act, 1958, since the year 1989. After promulgation of the Punjab Finance Act, 1992, the petitioner was allowed to pay the entertainment duty under section 3-A(i) of the Punjab Entertainment Duty Act, 1958. This levy of the duty was challenged by the petitioner in the High Court by filing Writ Petition No,1984 of 2000 on the ground that entertainment duty for its unit has been withdrawn with the deletion of Serial 1 of section 3-A of the Punjab Entertainment Duty Act, 1958, through section 4 of the Punjab Finance Ordinance, 2000. This writ petition was disposed of by the High Court with the following orders:- "The above mentioned shows that the respondents cannot charge any entertainment duty from the petitioner under section 3-A of the Punjab Entertainment Duty Act, 1958 as the same has already been deleted. They, however, remain at liberty to charge other duties including some other entertainment duty, if any, under any other law or under any section or provision of the Punjab Entertainment Duty Act.
1958."
3. After disposal of the above said writ petition. The petitioner was issued Notice No,2504E&T(Entt)., dated 9-6-2001 calling upon the petitioner to pay the entertainment duty in the manner and at the rate prescribed in section 3 of the Punjab Entertainment Duty Act, 1958. The petitioner after receiving the notice filed objection before the Director,Excise and Taxation, Rawalpindi Division, Rawalpindi, by contending that the duty cannot be levied under section 3 of the Punjab Entertainment Duty Act, 1958 as the facility has been declared as special entertainment to be charged under section 3-A of the Punjab Entertainment Duty Act, 1958 which has been declared as withdrawn by the High Court in order dated 10-5-2001. Objection was not acceded to by the respondent No,2 who passed an order dated 4-12-2001 declaring Rs,12,15,330 as arrears equal amount as penalty against the petitioner. The said order dated 4-12-2001 was assailed by the petitioner through a revision petition before the Director, Excise and Taxation, Lahore, who dismissed the same vide order dated 24-4-2002, hence this petition.
4. Report and parawise comments have been filed by the respondent. In reply to paras. 6 and 7 it has been stated that, "the contention of the petitioner was contrary to the facts. The petitioner entertainment falls within the definition of entertainment as defined in section 2(d) of the Act and chargeable under section 3. The same was duly upheld by the Hon'ble High Court in Writ Petition No,7572 of 1988". In reply to para. 9, it was asserted that verdict in Writ Petition No,1984/2000 is quite clear and was ordered to charge duty under any other law by any section or provision of Punjab Entertainment Duty Act, 1958. Section 3 still holds good and is applicable to all entertainments excepting those detailed in section 3-A of the Act."
5. Learned counsel for the petitioner contends that the subject of sections 3 and 3-A of the Punjab Entertainment Duty Act, 1958 are totally different and distinct. The Government by Notification has declared. That the respondent facility was to be charged under section 3-A of the Punjab Entertainment Duty Act, 1958 which has already been deleted and withdrawn. The Department has therefore, no authority to charge entertainment duty from the petitioner at the rate of 65% as it is chargeable under section 3 against 25% which was being charged and withdrawn, that the definition of the entertainment under section 2(d) of the Punjab Entertainment Duty Act, 1958 is not disputed but by the addition of section 3-A of the Punjab Finance Act, 1992, the entertain able items for the purposes of charging duty was divided into two categories. The precise submission of the learned counsel for the petitioner is that petitioner is not liable to pay duty under section 3 of the Act and duty under section 3-A of the Act is denied. Notice dated 9-6-2001 was patently illegal and without jurisdiction.
6. On the other hand learned A.A.-G. Contends that the petitioner's entertainment falls with the definition of. Entertainment as defined in section 2(d) of the Punjab Entertainment Duty Act, 1958, and is chargeable under section 3 of the same was upheld by the High Court in Writ Petition No,7572 of 1988 and Writ Petition No, 1984 of 2000 and observed that. "they however, remain at liberty to charge other duties including some other entertainment duty, if any, under any other law or under any section or provision of the Punjab Entertainment Duty Act, 1958". The impugned order rejecting the objection of the petitioner dated 4-12-2001 and the revisional order of Director Excise and Taxation, Lahore, dated 24-12-2002 are in accordance with the law.
7. The admitted position on the record is that petitioner was being charged for entertainment duty under section 3-A of the Punjab Entertainment Duty Act, 1958, as added through Punjab Finance Act, 1992, whereas, the same stands deleted through section 4 of the Punjab Finance Ordinance, 2000. In section 2(d) of the Punjab Entertainment Duty Act, 1958 (X of 1958), entertainment has been defined as under:-- "Entertainment includes any exhibition, performance, amusement or horse racing to which persons are admitted on payment." Now subsection (d) of section 2 was substituted through an amendment in the Punjab Entertainment Duty Act, 1958, through Act VI of 1992 (Punjab Finance Act, 1992) and entertainment is defined as under:-- "Includes any exhibition, performance, amusement or horse racing to which persons are admitted on payment."
8. The petitioner challenged the levy of entertainment duty through Writ Petition No,7572 of 1988 on the ground that the entertainment duty cannot be imposed under the Punjab Entertainment Duty Act, 1958 inasmuch as the chair-lift was not entertainment as defined in clause (d) of section 2 of the said Act. The writ petition was decided on 8-6-1993 and it was observed that, "ride in chair-lift being a joy-ride and admission of public to chair-lift being on payment, same was liable to entertainment duty. See ease of Parks Pakistan (Pvt.) Ltd. v. Director, Excise and Taxation and others 1994 CLC 1034. The petitioner challenged the said order before the Hon'ble Supreme Court of Pakistan through Civil Petition for Leave to Appeal No,1 173-1 of 1993 which was withdrawn subsequently.
9. The respondent_ cannot charge the entertainment duty under section 3-A of the Punjab Entertainment Duty Act, 1958 as added through the Punjab Finance Act, 1992 as the same stands deleted through section 4' of the Punjab Finance Ordinance, 2000. Chair-lift are joy rides as held by the Hon'ble High Court in the order dated 8-6-1993 which had attained finality. The petitioner cannot say that respondent cannot charge entertainment duty under section 3. The respondent was at liberty to charge other duties including some other entertainment duty, if any, under any other law or under any section or provision of the Punjab Entertainment Duty Act, 1958 as observed by the High. Court in its order dated 10-5-2001. The petitioner entertainment falls within the definition of entertainment as defined under section 2(d) of the Act and therefore, chargeable under section 3. The petitioner objection has rightly been rejected by the Director, Excise and Taxation, Rawalpindi Division,Rawalpindi and revision petition filed by the petitioner was also dismissed which needs no interference by this Court in exercise of writ jurisdiction.
9. For what has been discussed above, this petition fails and is dismissed.