NAIMUDDIN, J.-This constitution petition under Article 199 of the Con--stitution against the order dated 29-10-1976, passed by the Assistant Collector of Customs arises in the following circumstances:- The petitioner is the subsidiary of the Pakistan International Airlines Corporation and owns a hotel known as "The Inn" (hereinafter called the Hotel). The Hotel has the following accommodation :- "No. Of Rooms.
1. Double Rooms 30
2. Large Single Rooms 12
3. Small Single Rooms 60."
The room rates of the hotel as stated by the petitioner are as follows :-- "ROOM RATES EFFECTING 7TH JUNE, 1975 NormalSingle SmallRoom LargeDouble RoomFor Two for one personPersons.
Basic80.00130.00165.001.65.00 Central Excise Duty12.0019.5024.7524.75 Surcharge 4.004.004.008.00 Total :96.00153.50193.75197.75 SPECIAL RATES-10% DISCOUNT TO ALL AIRLINES STAFF INCLUDING PIA/KLM STAFF OTHER THAN OPERATING CREW ON DUTY AND PIA/KLM GUEST Basic72.00117.00148.50148.50 Central Excise Duty12.0019.5024.7524.75 Surcharge4.004.004.008.00 Total :88.00140.50177.25181.25 SPECIAL RATE 15 % DISCOUNT TO ANY STAYING OVER 4 WEEKS'
Basic68.00110.50140.25 -140.25 Central Excise Duty12.0019.5024.7524.75 Surcharge4.004.004.008.00 Total :84.00134.00169.00173.00 SPECIAL RATE ALL OPERATING CREW ON DUTY AND TRANSIT PASSENGERS STAYING ONLY ON PIA ACCOUNT Basic37.5075.0093.7593.75 Central Excise Duty5.6511.2514.0514.05 Surcharge2.502.502.505.00 Total:45.6588.75110.30112.80 EXTRA BED CHARGESBABY COT CHARGES NORMALP I A ONLYNORMAL P I A ONLY Basic24.0015.0010.0010.00 Central Excise Duty3.602.251.501.50 Surcharge4.002.504.002.50 Total :31.6019.75 '15.5014.00 NormalSuiteSuite For one personFor two persons Basic-265.00265.00 Central Excise Duty'39.7539.75 Surcharge4.008.00 Total :308.75312.75 SPECIAL RATES 10 % DISCOUNT TO ALL AIRLINES STAFF INCLUDING PIA/KLM STAFF OTHER THAN OPERATING CREW ON DUTY AND PIA/KLM GUEST Basic238.50 238.50 Central Excise Duty39.75 39.75 Surcharge4.008.00 Total ;282.25 286.25 SPECIAL RATE 15 Y. DISCOUNT TO ANY STAYING OVER 4 WEEKS Basic '225.25225.25 Central Excise Duty39.2539.25 Surcharge4.008.00 Total :268.50272.50 SPECIAL RATE ALL OPERATING CREW ON DUTY AND TRANSIT PASSENGERS STAYING ONLY ON PIA ACCOUNT Basic150.00150.00 .
Central Excise Duty22.0522.05 Surcharge2.505.00 Total :175.80177.05 NO DISCOUNT TO BE GIVEN ON GOVERNMENT TAXES".
2. That by a show-cause notice dated 28-9-1976, the respondent required the petitioner to show cause why it should not pay the amount of Rs. 5,45,346.37 being the amount of excise duty in arrears which amount included Rs. 3,23,085.04 on account of additional duty.
3. The petitioner submitted its explanation and took the stand that no additional amount of duty was due or payable and further submitted that the liability to pay Central Excise Duty on all services, facilities and utilities is fixed and limited to 15 % of the actual charges recovered or charged by a hotel or restaurant in terms of Part 11 of Schedule I to the Central Excise and Salt Act, 1944 (hereinafter called the Act). It was further explained that the room charges and other charges for services, facilities and utilities in respect of PIA crew on duty and transit passengers staying PIA account differ from the charges recovered from normal customers. It also explained that in the case of PIA crew and PIA transit passengers a special rate has been fixed and Central Excise Duty is charged on 15 % of the actual charges received by the Hotel from Pakistan International Airlines Corporation in accordance with law.
However, the Assistant Collector of Customs by the order dated 29-10-1976, did not accept the explanation of the petitioner to the show-cause notice and confirmed the demand of Rs.
5,45,346.37 which included the amount of additional duty of Rs. 3,23,085.04 as stated hereinbefore and required the petitioner to pay the same within 10 days of the receipt of the order.
Aggrieved by the aforesaid order the petitioner has come up in this con--stitution petition.
4. We have heard Mr. Khalid M. Ishaque, Advocate for the petitioner and Mr. S. Hamid Hussain, Advocate for the respondent.
5. We may first dispose of a preliminary objection raised by Mr. S. Hamid Hussain that the petition is not maintainable as the petitioner has not availed of alternate remedy of appeal available to it under the law.
In our view the objection is misconceived in this case. It is admitted that appeal against the impugned order would have been filed before the Collector of Customs who, as stated in the affidavit-in-rejoinder had take certain view of the matter. Here we may reproduce paragraph 4 of the affidavit-in-rejoinder which has not been controverted either by any reply or at the bar: "I say that after the impugned order had been passed a meeting was held with the Collector of Central Excise and Land Customs on 5-1-1977. At this meeting the Collector of Central Excise & Land Custom Karachi advised the petitioners that the demand for duty was in accordance with law and would have to be paid and no useful purpose would be served by protracted litigation. He advised the petitioner to pay the amount of duty demanded amounting to Rs. 2,14,552.7 and promised to grant a stay for recovery of the penalty imposed b the respondent. In these circumstances, since the Collector had mad up his mind about the petitioner's case no useful purpose would have been served in filing an appeal against the impugned order inasmuch as the appeal was not an alternate or equally efficacious remedy and the petitioners had no other remedy except to invoke the extraordinary jurisdiction of this Hon'blc Court."
Therefore, it is obvious that it would have been futile to go in appeal before the Collector of Customs. Further, the petition involves interpretation of an important provision of Excise Law and it is in the interest of all including the respondent that there should be an authoritative pronouncement on the question by a superior Court, for it is stated at the bar that there is none.
There are large number of cases where petitioners have been enter--tained in the constitutional jurisdiction, particularly in the nature of certiorari in spite of alternate remedy by way of appeal or otherwise being available, under special circumstances. We may, however, refer to some of them here. These are :- Naginu Silk Mills, Lyallpur v. The Income-tax, A-Ward, Lyallpur and another PLD 1963 SC 322; Lt.- Col. Muhammad Amir Khan v. The Collector of Estate Duty PLD 1961 SC 119; Syed Ali Abbas and others v. Yishan Singh and others PLD 1967 SC 294 and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Pakistan Works Division and 2 others PLD1972SC279.
In the second named case B. Z. Kaikaus, J. Had the occasion on the question under consideration to say this :- "There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy ; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute".
In the third cited case it was observed by Cornelius, C. J., at page 298 of the report as follows "There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess."
We therefore, overrule the preliminary objection.
Now, it is submitted by Mr. Khalid M. Ishaque that different rates are fixed by the petitioner for different classes of people and also for different periods of stay in the Hotel and they are in the nature of rate structure and -not by way of any concession for rent is charged by the Hotel at the same rate from each customer of the same class. On the other hand it is submitted by Mr. S. Hamid Hussain, that the Pakistan International Airlines Corporation Crew members and transit passengers and other classes of people are given discount in the room rates and therefore, it was a concession within the meaning of section 4(3)(A) of the Act.
In order to appreciate the submissions it would be useful if we here quote the provisions of section 4 of the Act :- "4. Determination of value for the purposes of duty.-(1) Where under this Act any article is chargeable with duty at a rate dependent on the value of the article 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 in 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) Where under this Act any article is chargeable with duty at a rate dependent on the retail price of the article, the retail price shall be the price fixed by the manufacturer, inclusive of all charges and taxes, 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 such price.
(3) Where under this Act any services, facilities and utilities are subject to duty at a rate dependent on the charges therefor and--
(a) any such services, facilities or utilities are, in any case, rendered or provided free of charge or at a concessional rate, the duty shall be levied and collected on the amount which would have charged for such services, facilities and utilities had they not been rendered or provided free of charge or at a concessional rate ; and
(b) the amount with reference to which the duty shall be levied shall be the total amount charged for all services, facilities and utilities provided or rendered, including charges for supplies or merchandise therewith."
From the provisions of clause (i), subsection (3) it is clear that if any services, facilities or utilities are rendered or provided free of charges or at a concessional rate in such case the duty has to be levied and collected on the amount which would have been charged for such services, facilities, and utilities if they have not been rendered or provided free of charges or at a concessional rate. In our view the words which require special attention and which are key words in the provisions under consideration are "in any case" and "concessional rate".
Now, it is well known practice in the field of trade and commerce that various merchandise or commodities are sold to different classes of customers at different rates, for example a mill sells cloth produced by it in wholesale at a rate different from the one charged by it at its retail shop and in such a case the rate charges from a whole-seller cannot be termed as a concessional rate, for the term "concession" in our view imports reduction of prices already fixed for a class of customers or for a quantity, and if different rates are fixed for different classes or customers or for different quantities, then the difference in rate cannot be said to be a "concession".
Further, according to 'dictionary meaning the term, in the present context, means, rebate or reduction in fixed rate or price as a favour but when the rates or prices are already fixed and known and the services, facilities and , utilities could be obtained by any person or that class then the question of favour would not arise. Here we may refer to an American case, namely De Haro v.
United States 18 L. Ed. 681,cited to Ballentine's Law Dictionary, wherein the term as used in Spanish Americen grant came up for consideration and it was held to mean "whatsoever, is granted as favour or reward, as the privileges granted by the prince". Furthermore, the provisions contemplate an individual case as the words used are "in any case" which in our view will not cover rates fixed for different classes of customers. We may here give another example. It is common knowledge that sugar is sold to different classes or consumers at different rates, as industrial and commercial con--sumers are charged higher rate than that charged from the domestic consumers, Could it in such a case, be said that the rate or price charged from the domestic consumers, is a concessional rate or price, if it could, then it could be argued with equal force that the rate charged from the industrial or com--mercial consumers is exorbitant. But in our view the argument would not be sound for different prices could be charged from different classes of customers for a variety of reasons which we need not detail here. The experience shows that in commerce and trade there are generally different rates for different classes of customers or different quantities or for services used for different periods. It is, therefore, apparent that the rates charge from different Airlines or from P. I. A. On account of their crew member and transit passengers are not in the nature of concession and they could conveniently be termed as, or compared with the rates for bulk sale, quantity --wise or number-wise. In our view the convenient and safe criteria for judging whether a concession has been allowed or nor would be that if two customer of the same class are sold the same goods in the same or similar quantity a different rates, then in the absence of some other good reason, the one who purchases the same at lower rate pan' be said to have been granted a concession. '
We would accordingly declare that the order impugned in this petition, so far as it relates to additional duty, is without lawful authority and is, there--fore, of no legal effect.
In the circumstances of this case we leave the parties to bear their own costs.