1. ' JAVID IQBAL, J.--This petition for leave to appeal is directed against judgment of the Lahore High Court, Lahore, dated 28th November, 1983 whereby R.FA. Of the respondent Pak American Fertilizer Ltd. Was accepted and the judgment and decree of the lower Court was set aside and the suit of the petitioner was dismissed.
2. ' Briefly the facts are that the petitioner filed a suit for recovery of Rs,3,30,770.00 from the respondent as arrears of tax imposed by respondent No,2 i.e, Zila Council Mianwali on the export of fertilizers from District Mianwali. The Zila Council respondent had imposed the said tax at the rate of Rs,0.25 per bag on the export of the fertilizers from the limits of the District Council vide Notification No,3674, dated 27 November, 1976 and the right of its collection was leased out to the petitioner. It was contended on behalf of the petitioner that during the relevant period respondent Pak American Fertilizers Ltd. Exported 3007 railway wagons each containing 440 bags without paying the said tax. Since the said respondent did not pay it the present suit for its recovery was filed. The case of respondent No,1 was that it was a hundred per cent Government owned concern being only a 'manufacturer" rather than an "exporter" of fertilizer's and therefore was not liable to pay the said tax. The trial Court framed elaborate issues and found them all against respondent No,1 thus decreeing the suit of the petitioner. Thereupon, respondent No,1 challenged the judgment and decree of the trial Court by way of R.FA. Which as stated above has been allowed by the Lahore High Court, Lahore. Hence the present petition.
3. ' It was contended by learned counsel for the petitioner before us that there was no justification on the part of the High Court to hold that respondent No,1 was only a "manufacturer" of fertilizers and not the "exporter" or that the exporter in the present case was the National Fertilizer Marketing Ltd.
4. Which was a separate and independent entity, and if at all, only that company could be held liable to pay the said tax. Learned counsel argued that there had been misreading of record on this point by the High Court. It was argued that respondent No,1 was maintaining a railway siding in the premises of the factory wherefrom wagons were despatched to outside places, that it acted as an exporter and consequently in terms of the notification was liable to pay the tax in question. It was also submitted that the so-called exporter i.e, National Fertilizer Marketing Ltd. Was only a subsidiary company of respondent No,1 and therefore in the eyes of law both were one and the same juristic person liable to discharge the obligation.
5. ' We have carefully considered the arguments of learned counsel. The basic question which requires determination is as to who is liable to pay the tax. According to the notification the tax is to be imposed on an "exporter". The evidence brought on the record in the instant case which we have examined is to the effect that respondent No,1 only manufactures fertilizers while its sales were conducted by National Fertilizer Marketing Ltd. Which was an independent corporate body.
6. The petitioner before the High Court could not disprove this fact. Since it could not be established by the petitioner that respondent No,1 was an "exporter" by bringing forth any cogent evidence to that effect on record, in our view the High Court was correct in arriving at the conclusion that both respondent No,1 and Messrs National Fertilizer Marketing Ltd. Were separately incorporate bodies and these could not be treated as one person. Since the finding of fact has been decided against the petitioner by the High Court, we do not find any substance in this petition which is accordingly dismissed.