' AJMAL MIAN, J.-This petition is directed against the demand notice, dated 10th January, 1976 issued by the Superintendent, C. E. And L. C. Circle Karachi demanding a sum of Rs, 32,100.94 within 15 days being the alleged amount not paid on the goods already cleared. It may be observed that the petitioners were issued a show-cause notice, dated 16th January, 1971 for alleged evasion of excise duty. The above show-cause notice culminated in passing of order, dated 8th May, 1974 by respondent No,
2. It may be advantageous to produce hereinbelow the conclusion arrived at by respondent No, 2 which reads as follows :- "The fact however established against the factory is that it has not been showing in the accounts of production and clearance documents 'PAIRS'. If the prosecutor story is correct that instead of singles, pair was being cleared then steps should have been taken to probe whether the price charged was for single or for the pair. No proper investigation in this 'regard had been made whether the factory declared value was correct or otherwise. The duty being Advocate great stress should have been given on the valuation aspects. In either cases the demand of duty on the past clearances to me appears to be not intelligible because of the prosecution version that they were cleared in single. If it is admitted that they were cleared in pair then too unless the valuation thereof is proved to be manipulated no charge can be made.
Summing up as said earlier the case has not been properly investigated and adjudicated carefully.
The point in remand order have not been fully met. Considering all the circumstances fully Deputy Collector's order is modified to the extent that the option to pay fine in lieu of confiscation is reduced to Rs, 5,000 (Rs, five thousand) only and penalty to Rs, 5,000."
2. It may be observed that respondent No, 2 concluded that it was not intelligible to raise any demand for the excise duty in respect of the past clearances for the reasons recorded by him. He maintained the order of the Deputy Collector but reduced the amount from Rs, One lac to 5,000 which was payable by the petitioner in lieu of the confiscation and also reduced the amount of penalty to Rs, 5,000 from Rs, one lac. However, the Superintendent in spite at the above order of respondent No, 2 issued the impugned demand notice. The petitioners being aggrieved by the above demand notice have filed the present petition.
3. In support of the above petition Mr. S. M. Sadiq learned counsel for the petitioners has urged that after respondent No, 2 had concluded that it was not intelligible to raise any demand in respect of the goods already cleared, and keeping in view he imposed the penalty amount as well as fixed the amount which was payable in lieu of confiscation of the goods, the Superintendent had no jurisdiction to issue the impugned notice. Mr. Zia Parvez, learned counsel for respondents Nos. 1 and 2 was unable to show us that in spite of the above appellate order passed by respondent No, 2, the Superintendent could have raised this demand. If the department was aggrieved by the above appellate order, they should have filed revision before the competent authority but it cannot re- open an issue which stands concluded by the Collector. According to the petitioners they have already paid Rs, 5,000 in lieu of the confiscation and penalty of Rs, 5,000. It has also been submitted by Mr. S. M. Sadiq that after the filing of the above writ petition the petitioners have paid the impugned amount namely Rs, 32,100.94. We allow the petition and declare the impugned demand as without lawful authority and of no legal effect. The petitioners shall be entitled to claim refund of the above amount in case they have already paid. In the circumstances of the case there will be no order as to costs.