EJAZ AFZAL KHAN, C.J.---Collector Sales Tax through the instant Reference sought answers of the questions as follows:---
(1) Whether the learned appellate Tribunal could accept the retail price fixed by the respondent for the purpose of excise duty ' when neither it nor the strength of the cement contained in the bag was printed or embossed thereon in accordance with the provisions of law?
(2) Whether the learned appellate Tribunal could decide as to what provision of law was applicable to the facts and circumstances of the case notwithstanding it was not mentioned in the show cause notice issued by the Additional Collector?
2. Learned counsel appearing on behalf of the appellant contended that the case of the appellant clearly falls within the purview of section 4(1) of the Central Excise Act, 1944, as the price of the article for the purpose of duty shall be deemed to be the price for which an article of the like kind and quality is sold or is capable of being sold to the general body of retail traders or the general body of retail consumers on the day on which the article so assessed to duty is removed from the factory or the warehouse. The learned counsel next contended that even if it is considered to be a case of 4(2) of the Act, the duty shall be charged on the retail price fixed by the manufacturer at which any particular brand or variety of such article is sold to the general body of consumers. He next contended that if the price is more than the one so fixed for the said brand or variety, the duty shall be charged on the highest of such price. The learned counsel to support his contention placed reliance on the case of Pakistan through Secretary, Finance and another v. Kohat Cement Company and others (PLD,1995 Supreme Court 659).
3. As against that, the learned counsel appearing on behalf of the respondent contended that the case of the respondent does not fall within the purview of section 4(1) of the Act by any attribute and that it being a case of section 4(2) of the Act does not call for the interference of this Court, especially when the question urged is one of fact rather than of law. The learned counsel by referring to the judgment of the learned appellate Tribunal contended that when all the questions of fact and law have been squarely dealt with by the learned appellate Tribunal, the appellant cannot stir the same controversy by painting it in a different hue and colour. The learned counsel by concluding his arguments contended that the case of the respondent is squarely covered by section 4(2) of the Act when the goods in respect whereof duty is charged on retail price fixed by the manufacturer, were notified by the Federal Government. The learned counsel to support his contentions placed reliance on the case of Deputy Collector of Central Excise and Land Customs, Peshawar and 2 others v. Premier Tobacco Industries Limited Peshawar (1993 SCM R 447).
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. Before we appreciate the arguments addressed at the bar by the learned counsel for the parties, it is worthwhile to refer to section 4 of the Act which reads as under:--- "4. Determination of value for the purposes of duty.-- 2012] Collector of Sales Tax and Central Excise v. Lucky 711 Cement Ltd. (Ejaz Afzal Khan, C J)
( ) Where under this Act any article is chargeable with duty at a rate dependent on the value of the articles, such value shall be deemed to be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold to the general body of retail traders or if there is no general body of retail traders, the general body of consumers on the day on which the article which is being assessed to duty is removed from the factory or the warehouse, as the case may be, without any abatement or deduction whatever except the amounts of duty and sales tax then payable.
(2) Notwithstanding the provisions of subsection (1), the Federal Government may, by notification in the official Gazette, declare that in respect of any goods or class of goods the duty shall be charged on the retail price fixed by the manufacturer, inclusive of all charges and taxes, other than sales tax levied and collected under section 3 of the Sales Tax Act, 1990, at which any particular brand or variety of such article should be sold to the general body of consumers or, if more than one such price is so fixed for the same brand or variety, the highest of such price: Provided that the retail price shall be legibly, prominently and indelibly printed or embossed on each article, packet, container, package, cover or label, as the case may be.
(3) Where under this Act any services, facilities and utilities are subject to duty at a rate dependent on the charges therefor and--
(a) (b) (4) ...............................................
6. A look at the above quoted provision would reveal that the value of the goods for the purpose of duty under section 4(1) of the Act would be deemed to be the one at which an article of alike kind or quality is sold or is capable of being sold. Similarly the value of the goods for the purpose of duty under section 4(2) of the Act would be deemed to be the one at which any particular brand or variety is sold to the general body of consumers. In case, such goods, is sold at more than one price, the duty would be charged on the price, which is highest.
Whether it is a case falling within the purview of sections 4(1) or 4(2) of the Act, the respondent was required to prove that the price, thus, charged was legibly, prominently and indelibly printed or embossed on the container.
Likewise, decrease in strength of cement calling for decrease in price was also required to be printed on the container. If we see the scheme of the enactment, this is not a thing to be done in the secrecy of the office but under the gaze of the public at large. Specimen of the paper containers provided by the Paper Mills, where from they were had, would show that neither the pride nor the strength of the cement was printed thereon. The respondent, too, produced the paper containers to show that the price as well as strength of cement was mentioned thereon, but the learned appellate Tribunal while dealing with this aspect did not record any reason much less convincing for rejecting the evidence of the appellant and accepting that of the respondent.
7. The Tribunal being a final Court of fact was also required to see what was the correct provision of law applicable to the facts and circumstances of the case and whether the show cause notice issued to the respondent was issued under the correct provision of law? It being the most important forum in the hierarchy was required to decide the lis with due application of mind instead of blindly following the track chosen by the Additional Collector. If a forum at the lowest level goes wrong the next higher can step in to correct that. This is what such forum has been established for. Under no circumstances a huge amount of tax or duty can be allowed to go down the drain simply because an Officer at the lowest rung has not mentioned a correct provision of law. For it is the law and not the opinion of the officer which determines the course of action.
8. The appellate Tribunal also failed to see and decide in clear and distinct terms whether the provision contained in rule 43 of the Excuse Rules was adhered to in its letter and spirit. Where the appellate Tribunal neither appreciated the questions arising in the case in their correct perspective nor decided them with due application of mind, a finding, thus, handed down cannot be maintained. Reference to the case of Pakistan through Secretary, Finance and another v. Kohat Cement Company and others (Supra) cited by the learned counsel for the appellant and the case of Deputy Collector of Central Excise and Land Customs, Peshawar and 2 others v. Premier Tobacco Industries Limited Peshawar (Supra) cited by the learned counsel for the respondent would be of no use when they deal with a different situation altogether.
9. For the reasons discussed above, we allow this appeal, set aside the impugned judgment and send the case back to the learned appellate Tribunal for decision afresh in accordance with law. .