' IFTIKHAR MUHAMMAD CHAUDHARY, J.---In the above noted petitions, judgment, dated 30th November, 2001 passed by Lahore High Court, Lahore has been assailed. Concluding paras. From the judgment are reproduced herembelow:--- "5. Learned counsel for the petitioner, on the other hand, has argued that the petitioner is not a wholesaler because one necessary ingredient of the definition of wholesaler, reproduced above, is that only such person can be termed as wholesaler who is engaged in the business of buying and selling paperboard. The petitioner, according to learned counsel, does not buy paperboard. It merely manufacturers and sells paperboard. In such circumstances, it is clear that the petitioner is not wholesaler and, therefore, cannot be subjected to the regime established by the Collection of Sales Tax on Paperboard Rules, 1994.
6. Faced with the above situation, learned counsel for the respondent-Department has stated that the petitioner also buys paperboard and sells the same. This contention, however, is denied by learned counsel for the petitioner. In any event, this is a question of fact which need not be addressed in this case as it is not germane to the decision of the legal issue raised the present petition.
7. In view of the above discussion, this petition is allowed and it is declared that the petitioner does not fall within the definition of wholesaler if it does not engage in the business of both buying and selling of paperboard."
2. Precisely stating the facts of the case are that the respondent instituted writ petitions before the High Court with the averments that as they are not wholesalers, therefore under S.R.O. No,877 (I)/1994, they are not liable to pay sales tax @ Rs,750 per ton directly to the industrial consumed.
The learned Single Judge in Chambers of Lahore High Court allowed their Writ Petitions on 22nd February, 2001. Said judgment was assailed before this Court by filing Civil Petitions Nos. 568-L to 1572-L of 2001, which were converted into appeals and allowed vide judgment, dated 4th July, 2001, whereby cases were remanded back to the learned High Court with the observation to examine as to whether respondents fall under the category of wholesalers, distributors, and dealers etc. On remand, again the petitions filed by the respondents have been allowed by means of impugned judgment, as such instant petitions have been filed for leave to appeal.
3. Mr. A. Karim Malik, learned Advocate Supreme Court for petitioner contended that the directions made by this Court in its earlier judgment, dated 4th July, 2001, have not been complied with.
According to him obviously for the reason that the question of facts was raised before the High Court by both the parties because the stand of the Department was that the respondents are wholesalers/ distributors/ dealers, therefore, they are liable to pay Rs,750 per ton as a sales tax.
Whereas, on the other hand the case of respondents was that they are manufacturers, as such are not bound to pay sales tax. According to learned counsel, for such reasons, learned Judge in Chambers of Lahore High Court, Lahore instead of granting relief, may have dismissed the writ petitions, directing the aggrieved party to avail remedy before the forum competent to settle this question of facts after full-fledge enquiry. He further stated that the High Court after hearing arguments from both the sides have concluded that the respondents are manufacturers, therefore, they are not liable to make payment of sales tax @ Rs,750 per ton but without assigning any reason. In this behalf reference of para No,6 and 7 of the impugned judgment has been made by him in particular.
5. We observed with concern that learned High Court did not record findings in terms of our earlier order, dated 4th July, 2001. Surprisingly, after noting the arguments of both the learned counsel for the parties learned Single. Judge in Chambers of Lahore High Court, Lahore has formed an opinion that the respondents are manufacturer and not wholesalers, without mentioning that how they are manufacturers. Learned counsel for respondents in Civil Petition No, 697-L/2002 attempted to support the findings of the learned High Court.
6. After hearing both the counsel for the parties, we had allowed the petitions by converting them into appeals but when detail order was checked, it was noticed that respondents in Civil Petitions Nos.694-L, 696-L to 698-L/2002 were un-represented. Therefore, in the interest of justice, earlier order of allowing petitions, by converting them into appeals, is recalled and leave to appeal is granted to examine as to whether the learned High Court has disposed of the writ petitions filed by respondents after remand, in accordance with the observation made by this Court in the earlier judgment, dated 22nd February, 2001.