AJMAL MIAN, J.-1. By this common judgment, we intend to dispose of the above two petitions as identical point of law is involved. The brief facts leading to the filing of the above petitions are as follows:- Constitutional Petition No. D-91 of 1979: The petitioner in 1978 purchased a vessel by the name "Subt. S. Pride", which arrived at the outer anchorage of Karachi Port on 28th September, 1978 and of which I.G.M, was filed on 7th October, 1978 against manifest No. 1320. It seems that on 26th November, 1978 the above vessel was assessed for customs and sales tax purposes and the petitioners were asked to pay sales tax at 8% of the imported value of the vessel in terms of sub-section (3) of section 3 of the Sales Tax Act, 1951 (hereinafter referred to as the Act). The above demand was resisted by the petitioners and it was contended that by virtue of Notification No. S.R.O. 51(l)/72, dated 13th May, 1972, the vessels were exempted from payment of the sales-tax. The petitioners were allowed to clear the vessel on furnishing a bank guarantee of Rs. 4,35,200 in respect of the above 8% sales tax amount demanded by the respondent. It is the case of the petitioners that on 31st December, 1978 respondent No. 1 purported to encash the bank guarantee and therefore the petitioners have filed the above petition.
Constitutional Petition No. D-92 of 1979: The petitioners purchased a ship named "m. v. HARMONEY", which arrived at the Karachi Port in September, 1978 and of which I.G.M, was filed on 10th September, 1978 against manifest No. 1242/78.
In the present case also the respondent No. 3 demanded the payment of sales tax on the vessel at the rate of 8% amounting to Rs. 5,30,018. This demand was resisted by the petitioner and it was contended that under Notification No. S.R.O. 51(1 )/72, dated 13th May, 1972 vessels imported for scraping were exempted from payment of sales tax. However, the petitioners were permitted to clear the vessel on furnishing a bank guarantee amounting to Rs. 5,30,018 in respect of the aforesaid amount of sales tax demanded by respondent No. 3. It is the case of the petitioners that on 31st December, 1978 respondent No. 3 purported to encash the bank guarantee. The petitioners being aggrieved by the above action have filed the present petition.
2. (a) In support of the above petition Mr. S.M. Sadiq, learned counsel for the petitioners assisted by Mr. Abbas Ali, Advocate has contended as follows:-
(i) That SRO 51(I)/72, dated 13th May, 1972 had not been withdrawn by respondent No. 1 and, therefore, vessels imported for scraping remained exempted from the payment of sales tax.
(ii) That in any case even if it is to be held that by necessary implication the above Notification No. SRO 51(0/72 stands withdrawn, it was withdrawn on 5th November, 1978 upon issuance of Notification No. 1294(0/78, dated 5th November, 1978 which cannot operate retrospectively.
(b) On the other hand Mr. Akmal Waseem, learned counsel for the respondent who has argued on behalf of the respondent at the suggestion of Syed Inayat Ali, Advocate has urged as follows:-
(i) that the effect of issuance of Notification No. 1057(0/78, dated 24th August, 1978 was to withdraw the concession of sales tax granted in respect of vessels for scraping under above S.R.O. 51(I)/72.
(ii) That the object of issuance of S.R.O. 1294(0/78, dated 5th November, 1978 was to fill in the clerical omission to mention the concessional rate in above S.R.O. No. 1057(0/78, dated 24th August, 1978 and, therefore, the levy of sales tax on the vessels in question was in consonance with the above Notification.
3. Adverting to the first contention of the learned counsel for the parties, it may be observed that under S.R.O. 51(0/72, dated 13th May, 1972 issued under section 7 of the Act, exemption from payment of sales tax was inter alia granted to vessels imported for scraping. The above Notification was followed by S.R.O. 820(0/73, dated 9th June, 1973 whereby in exercise of the power conferred under sub-section (1) of section 7 of the Act, the Federal Government directed the recovery of sales tax on the goods mentioned therein, at the concessional rate. The above notification does not include P.C.T. 89.04, which covers the item of vessels. The above notification was followed by the above S.R.O. No. 1057(I)/78, dated 24th August, whereby para 7 was added to, which reads as follows:- "7. Ships, boats and other vessels falling under P.C.T. Heading No. 89.04 imported for breaking-up." lt may be noticed that the object of incorporation of the above-quoted para 7 was to exclude ships and other boats from the category of the exempted items and to classify them with the items in respect of which sales-tax at the reduced rate was to be charged and not at the rate of 20% mentioned in section 3(2) of the Act. It is also evident that against the above para 7 the reduced rate was not specified. The above notification was followed by above S.R.O. No. 1294(l)/78, dated 5th November, 1978 which reads as follows:- "S.R.O- 1294(I)/78. - In exercise of the powers conferred by sub-section (1) of section 7 of the Sales Tax Act, 1951 (III of 1951), the Federal Government is pleased to direct that in this Ministry's Notification No. S.R.O. 820(I)/73, dated the 9th June, 1973 the following further amendment shall be made and shall be deemed to have been so made on the 24th August, 1978, namely:- In the aforesaid Notification, in the table, against Serial No. 7 in the first column, in the third column, the figure '8' shall be added," We are inclined to hold that the effect of issuance of S.R.O. No. 1057(I)/78, dated 24th August, 1978 was to withdraw the concession of non-payment of sales tax granted under aforesaid 5.R.O. 51(I)/72, dated 13th May, 1972 in respect of vessels for scraping and, therefore, by necessary implication and because of repugnancy the above earlier Notification No. S.R.O. 51 (I)/72 stands repealed upon issuance of above S.R.O. No. 1057(I)/78.
4. (a) As regards the second submission of the learned counsel for the parties, it may be pertinent to observe that if we were to hold that non-mentioning of the rate of sales tax in above S.R.O. No. 1057(I)/78 was merely a clerical omission, the question of amending the above S.R.O, retrospectively would not arise. Mr. S.M. Sadiq, learned counsel for the petitioner has referred to the following cases:-
(i) Mst. Fidai Zuhra and others vs. Deputy Commissioner and Deputy Settlement Commissioner (Land), Sukkur PLD 1966 (W.P.) Kar. 79, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi was pleased to hold that the modification of the notification by a correction slip would be operative prospectively and not retrospectively. The reliance was placed on the two judgments of the Hon'ble Supreme Court of Pakistan, namely Rehmatullah vs. The Deputy Settlement Commissioner PLD 1963 SC 633 and Fazal Ahmad vs. Ziaullah Khan PLD 1964 SC 494.
(ii) The Burmah Shell Oil Storage and Distribution Company Ltd. Vs. The Trustees for the Port of Chittagong PLD 1961 SC 452. In the above case the Trustees of the Port of Chittagong issued a second notification substituting section 57(1 )(c) for section 57(2)(b) of the Chittagong Port Act, 1914. It was held by the Hon'ble Supreme Court that this substitution did not amount to making of good of an accidental omission but it made substantial change and material alteration in the notification and, therefore, the second notification could not be operative retrospectively.
(b) On the other hand Mr. Akmal Waseem has referred to the case of Khyber Electric Lamps Manufacturing Co. Ltd. Vs. Federation of Pakistan, through Ministry of Finance, Islamabad and another (PLD 1983 Pesh. 112 = PTCL 1983 (CL.) 316, in which a Division Bench of the Peshawar High Court (though shown as decided by the learned Acting Chief Justice as S.B.) held that a notification to remove any confusion and doubt about the purpose of the earlier notification can be given retrospective effect.
5. In our view, the basic question in the present case as observed is, as to whether the omission in the above S.R.O. 1057(0/78 to specify the concessional rate of the sales tax was an accidental omission. If it was an accidental omission, the same could have been made good by a subsequent notification as has been held by the Hon'ble Supreme Court in the above-cited Chittagong Port case PLD 1961 SC 452 but if it was not an accidental omission, in that event the fresh notification can only take effect prospectively though it purported to be retrospective.
We are inclined to hold that omission to mention the concessional rate in the above S.R.O.
1057(0/78, dated 24th August, 1978 was an accidental omission, which was made good by S.R.O. No. 1294(0/78, dated 5th November, 1978. In this view of the matter, the question of making the above notification, dated 5th November, 1978 applicable retrospectively does not arise. We may observe that it is not the form or wordings of the above notification, which is relevant, but its object and effect is material for ascertaining, whether it is to operate prospectively or retrospectively.
We may also point out that if the effect of the above S.R.O. 1057(0/78, dated 24th August, 1978 was to exclude vessels from the list of the exempted items from the payment of sales tax, the result would be that under sub-section (2) of section 3 of the Act, the petitioners had become liable to pay sales tax at the rate of 20%. It is, therefore, evident that making of good of the above accidental omission in aforesaid S.R.O. No. 1057(I)/78, dated 24th August, 1978 is in fact beneficial to the petitioners as the prescribed concessional rate is only 8% against 20%.
For the aforesaid reasons the petitions are dismissed but there will be no order as to costs.