NASIR-UL-MULK, J.--- This appeal by leave of the Court, filed by Messrs Parks Pakistan (Pvt.)
Limited, arises from the judgment of the Lahore High Court, Rawalpindi Bench of 30-9-2003 by which the appellant's writ petition challenging the imposition and collection of entertainment duty under section 3 of the Punjab Entertainments Duty Act, 1958, was dismissed.
2. Leave to appeal was granted on 16-12-2003 for determination of the question formulated in para.12 of the leave granting order, which reads:-- "The question of interpretation of sections 2(d), 3(1) of the West Pakistan Entertainments Duty Act, 1958, section 3-A added through Punjab Finance Act, 1992 and the legal consequence of their omission by Punjab Finance Ordinance, 2000 and the notification of 1995 produced by the learned Assistant Advocate-General has risen which is undoubtedly a question of law of public importance, therefore, we would grant leave to appeal."
3. The appellant is operating a chair lift system at Bansra Gali, Murree, since the year 1988, charging fee from those taking rides in the chair lift. The Director, Excise and Taxation, Rawalpindi, imposed 100% entertainment duty on the admission fee to the chair lift under section 3 of the Entertainments Duty Act. After contesting the imposition of the duty before the relevant authorities, the appellant filed a writ petition in the Lahore High Court, Rawalpindi Bench, urging that the rides in the chair lift was not entertainment as defined in clause (d) of section 2 of the Act. The argument did not persuade the Court and the writ petition was dismissed by judgment dated 2-5-1993, reported as Parks Pakistan (Pvt.) Ltd. v. Director, Excise and Taxation 1994 CLC 1034. From the said judgment, the appellant filed petition for leave to appeal before this Court. The petition was, however, not pressed in view of a Notification dated 12-1-1995 by which the appellant was allowed some relief in the payment of entertainment duty as the same was not directed to be charged under section 3-A of the Entertainments Duty Act, added by the Punjab Finance Act, 1992. Section 3-A was however, repealed by the Punjab Finance Act, 2000, whereafter the appellant was again being charged entertainment duty under section 3 of the Act. The appellant questioned this imposition before the Lahore High Court, contending that with the repeal of section 3-A, no entertainment duty whatsoever was payable by the appellant. This contention did not prevail with the High Court, which by the impugned judgment held that notwithstanding the appeal of section 3-A, the appellant was liable to pay duty under section 3 as the appellant's activities fell within the definition of "entertainment" as given in section 2(d) of the Act. It was in these circumstances that the leave was granted to the appellant.
4. In order to properly appreciate the contentions raised by Mr. Muhammad Munir Peracha, Advocate Supreme Court representing the appellant and Mrs. Afshan Ghazanfar, Assistant Advocate-General, Punjab, appearing for the respondents, it will be appropriate to refer to the relevant provisions in the Entertainments Duty Act and the amendments made therein.
5. Clause (d) of section 2 of the Act as it originally appears reads:--- "Entertainment, includes any exhibition, performance, amusement, game or sport to which persons are admitted on payment".
This definition of "entertainment" underwent a slight change by the amendment made in the Act by section 3 of the Punjab Finance Act, 1992 where the words "game or sport" were substituted by the words "horse racing". By the amendment, the rate of duty in the charging section 3 was altered to 65%. By this amending Act, section 3-A was added which reads:-- "3-A Duty on special classes of entertainments.--- Notwithstanding the provisions of section 3, the duty on the entertainments mentioned below in Column No,2 shall be charged at the rates mentioned against each in Column No,3:-- Sr.
No.Entertainment Rate of duty
1. Admission to recreational parks, amusement parks, fun lands and other similar recreational spots.(a) No duty for the first two years of the functioning of such entertainments; (b) Ten per cent of the payment for admission during the next two years; and (c) Twenty-five per cent of the payment of admission thereafter.
2. .......................................................
3. .......................................................
The Punjab Finance Ordinance, 2000 repealed the Entries at Serial No,1 of section 3-A.
6. The learned counsel appearing for the appellant contended that once the appellant was duly notified by the Director, Excise and Taxation to be subject to payment of entertainment duty under section 3-A, with repeal of its relevant provision, the appellant cannot now be charged duty under section 3 of the Act. That by the repeal, the intention of the Legislature was to exclude from levy of duty those premises and activities mentioned at Serial No,1 of section 3-A.
7. The learned Assistant Advocate-General, Punjab, pointed out that the appellant had earlier too challenged the duty in a writ petition on the ground that the appellant's activity was not covered by the definition of 'entertainment which was dismissed by the Lahore High Court, in the case of Parks Pakistan (Pvt.) Ltd. v. Director, Excise and Taxation (ibid) and since the appellant had withdrawn its petition for leave to appeal against the said judgment, the decision of the Lahore High Court that rides in the chair lift was entertainment, had attained finality. The learned Assistant Advocate- General, also brought to our notice a judgment of this Court in Government of West Pakistan v.
Jabee Limited PLD 1991 SC 870, where the scope of the word "entertainment" as it appears in the Entertainments Duty Act, has comprehensibly been explained.
8. The original charging provision under the Entertainments Duty Act was section 3, which levied duty on entertainments as defined in Clause (d) of section 2. The Punjab Finance Act, 1992, apart from bringing about some change in the definition of entertainment, added another charging provision by incorporating section 3-A in the Act and giving it an overriding effect over section 3.
The two sections were not mutually exclusive, but rather overlapped. However, those activities that were covered by section 3-A were liable to duty in terms and at the rate mentioned therein, whereas the remaining kinds of entertainment were still liable to be charged under section 3 of the Act. Thus, by the repeal of Entries at Serial No,1 of section 3-A by the Finance Ordinance, 2000, the entertainments mentioned therein were not exonerated from the payment of duty, if they were otherwise covered by the definition of "entertainment" and thus, were chargeable to duty under section 3.
9. The learned counsel for the appellant had also contended that the rides in the chair lift would not fall within any of the activities mentioned in the definition of "entertainment" given in clause (d) of section 2. We do not find ourselves in agreement with this contention and are of the view that the rides in the law chair lift by those who make payment for the same would be "amusement", which is one of the kinds of entertainments mentioned in clause (d) of section 2. Though the word "amusement" has not been defined in the Act, according to the Oxford English Dictionary, it inter alia means "recreation, relaxation, the pleasurable action upon the mind of anything light and cheerful, pleasant excitement". Those who go for the rides in the chair lift, obviously do so for relaxation, pleasure or excitement. It may also be noted that definition of "recreation" appearing in clause (d) of section 2 of the Act is not exhaustive as it begins with the word "include" See Government of West Pakistan v. Jabees Limited (ibid). The facility provided by the appellant of rides in the chair lift on payment of fee, is a recreation for those who avail the facility. The Lahore High Court, therefore, correctly concluded that the appellant was still liable to pay duty under section 3 of the Entertainments Duty Act, notwithstanding the repeal of the relevant part of section 3-A.
10. The appeal is, therefore, dismissed with no order as to costs.