' MUHAMMAD ZAHOORUL HAQ, J.--This petition is directed against the orders passed by the Collector of Central Excise and Land Customs, Karachi, dated 4-3-1972, the order of C.B.R., dated 22-10-1974 and the order of Government of Pakistan, dated 19-1-1977.
2. The petitioner is a Textile Mill and pays excise duty according to its production capacity. It has claimed abatement from excise duty on the ground that from 4-2-1971 to 1-4-1971 (56 days amounting to 167 shifts) the mills remained closed and therefore, neither the cotton fabrics nor cotton yarn could be produced by them. The Collector allowed the claim in respect of the cotton fabrics production for the specified period which was covered by the period of 1970-71 starting from 1-7-1970 to 31-3-1977. However, he did not allow any abatement on account of the cotton yarn on the ground that the account of yarn during the period under reference had not been maintained by the petitioner correctly.
' The C.B.R. Maintained the order on the ground that there was discrepancy in the private and prescribed records for July, 1970, and therefore, intention of the factory management could only be to suppress the figures of actual production to exaggerate the extent of shortfall. They were, therefore, doubtful in respect of the intentions of petitioner regarding maintenance of production- and-other-related-accounts for subsequent months of financial year 1970-71.
3. The Government of Pakistan in the revision did not deny that the closure of the mill had taken place but they were of the view that the closure of weaving section of a composite mill was not to be taken into account for the purposes of production of the cotton yarn section. They also relied upon the proviso of rule 4 which makes the claim of abatement contingent upon the condition that the actual total production in a financial year does not fall short of the production capacity of factory. They further held that since the party had been punished for incorrect maintenance and production of accounts for the period of July, 1970 as the party had produced the private accounts for July 1970, they were therefore, of the view that production of account of cotton yarn was not correctly maintained by the factory for a part of the period and hence the admissibility of the claim for abatement of duty cannot be based on such incorrect documents.
4. Before noting contentions of Mr. A.S. Waswani we may point out that there was another charge against the petitioner for having maintained double accounts in respect of cotton yarn for the period of 1969-70 and 1970-71 and for that period it had been alleged that private internal accounts had been produced by the petitioner showing that there was excess production than the one shown by them in the official accounts. The petitioners were punished on that account and the matter was taken by them upto the stage of revision where it was remanded by the Government to the C.B.R. For the purpose of recording evidence to establish that the records had been recovered from the party's premises. The matter was again taken up by the C.B.R. And he had maintained his order without recording any evidence in respect of the production of the records by the petitioneRs, The order of the C.B.R. Was maintained by the Government in revision. However, the petitioner filed Petition No, 411 of 1981 against those orders and this very Bench has declared the latter two orders of the C.B.R. And the Government of Pakistan as without lawful authority and had remanded the case back to the C.B.R. For the purpose of considering whether there was evidence to indicate the private/internal record had been really recovered from the premises of the petitioner.
5. In the present case the findings of the respondents against the petitioner are based on the findings in the other case that the production of yarn has been manipulated by the petitioners and since that case has been remanded -back to the C.B.R. It is apparent that this case should also be remanded back to the C.B.R. For being dealt with in accordance with the decision in the other case by the C.B.R. After complying with the directions made by this Court in Petition No, D-411 of 1981.
6. Mr. A.S.Waswa ni wanted us to allow this petition on the ground that since the Collector had allowed the abatement claim in respect of the cotton fabric section, therefore, there was no justification not to allow the same in respect of the cotton yarn section as the mills had remained closed. We are, however, of the view that the Government of Pakistan has taken the correct view that abatement of duty is not allowed automatically on the proof of the closure of mills under rule 4 but that the abatement is subject to the proof that the production had fallen short of the production capacity. It is, however, correct that if the accounts of the petitioner were eventually to be found correct and the private/internal accounts alleged to be recovered from the petitioners are found by C.B.R. To be in any way inadmissible then it is quite obvious that the petitioner's case shall have to be reconsidered on that basis. But at present unless that was done there is no justification of allowing this petition completely as the matter in respect of the private/ internal records is still before the Revenue Authorities as directed by us in Petition No, D-411 of 1981.
7. We would, therefore, confine ourselves to declaring that the orders of C.B.R. And the Government of Pakistan as mentioned above to the extent that they are based upon the private/internal records of the petitioners is being without lawful authority with the result that the appeal of the petitioners before C.B.R. Would be deemed to be pending and would be disposed of by the C.B.R. In the light of the decision to be made by C.B.R. In the matter relating to Petition No, 411 of 1981.
8. Syed Inayat All appearing for the respondents had submitted that the matter required to be remanded to be dealt with in accordance with the matter in Petition No, 411 of 1981. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.