1. ' MUHAMMAD HUSSAIN ADIL KHATRI, J.--By this Petition we propose to dispose of C.P. No,D-324 and 325 of 1986 filed by the Petitioner.
2. ' The Petitioner owns Fauji Sugar Mills Khoski, production capacity whereof has been determined at 45,600 tons per annum under Rule 3 of the Excise Duty on Production Capacity (Sugar) Rules, 1972.
3. ' The facts of C.P. No, D-324 of 1984 are that the Petitioner filed application dated 5-4-1975 requesting for abatement of Excise duty under rule 4 of the Excise Duty on Production Capacity (Sugar) Rules, 1972, on the shortfall of 18,755 tons in sugar production during crushing season of the year 1974-75. The respondent No,1 deducted 10% of the production capacity from the shortfall and granted abatement on the balance of 14,195 tons and thus exempted the petitioner from payment of Excise duty amounting to Rs,1,17,81,850 by order dated 5-7-1975. The petitioner challenged the aforesaid order by C.P. No,D1037/1975 before this Court. The aforesaid order was set aside by this Court and the case was remanded to the respondent No,1 by order dated 22-1-1981 with direction to decide the petitioner's claim for abatement in terms of Rule 4 of the aforesaid Rules. The petitioner by letter dated 23-2-1981 requested the respondent No,1 to grant abatement of duty on the entire shortfall as prayed earlier in application dated 5-4-1975.
4. ' The respondent No,1 by order dated 18-12-1985 accepted the shortfall to the extent of 15,622 tons and thus allowed abatement of Excise duty in the sum of Rs,1,30,00.000. This petition has been filed challenging the legality of the above order dated 18-12-1985.
5. ' Facts of the C.P. No, D-325/1986 are that the Petitioner by his application dated 20-7-1974 requested the respondent No,1 for granting abatement of Excise duty due to shortfall to the extent of 10,393 tons during the Crushing Season 1973-74. The respondent No,1 by order dated 21-8-1974 allowed abatement of duty in the sum of Rs,47,85,390. The Petitioner applied to the respondent No,1 for review of the aforesaid order on the basis of judgment given by Supreme Court in the case of Charsadda Sugar Mills (PLD 1973 SC 428). The respondent No,1 reviewed the aforesaid order by order dated 23-12-1985 and allowed the abatement in respect of 5,764.08 tons, i,e. To the extent of Rs,47,84,186.04 in terms of money. The Petitioner has challenged the said order in C.P. No,325/1986.
6. ' We have heard Mr. Mansoor-ul-Arfin learned Advocate for the Petitioner and Mr. M.I. Shahani for the respondents.
7. ' The learned counsel for the Petitioner has contended that entire shortfall during both the years was due to the circumstances beyond the control of the Petitioner. The Petitioner having lifted the entire sugarcane available in the allotted zone, cannot be made responsible for the shortfall, for not having procured the sugarcane from unallotted or free zones. It was further contended that the production of sugarcane was low and the inferior quality during both the years was because of lack of proper irrigation facilities and pest infection. With regard to the year 1974-75 it has been further contended that the Petitioner Mill could work only for 132 days instead of full 160 days of the season.
8. ' Both the orders dated 18-12-1985 and 23-12-1985 have been anxiously considered by us and we find that the respondent No,1 considered the pleas of the Petitioner in full details and found them untenable. Respondent No,1 discarded the plea of shortage of the irrigation water as no evidence was produced by the A Petitioner to establish the same. So far as allegation of pest attack is concerned the same was repelled for the reason that had the sugarcane suffered infection, the Petitioner would not have recovered sugar at the rate of 9.26% and 9.55% respectively during the year in question. It was also found by the respondent No,1 that there was no ban on procurement of sugarcane from the free and unallotted zones. It was concluded by the respondent No,1 that if the Petitioner had put any extra efforts to augment the production of sugar by remelting gur or obtaining sugarcane from the unallotted zones, the deficit in production could have been made good.
9. No fault can be found, with reasons advanced by the respondent No,1 in rejecting the abatement claims of the Petitioner. On the contrary we find that the quantum of abatement in Excise duty was increased for both the years without assigning any reasons and that too after having found that the shortfall in the production of sugar was not due to any circumstances beyond the control of the Petitioner. It is worthwhile to mention here that so far as the year 1973-74 is concerned the Petitioner Mill had worked for 167 days as against specified 160 days. Recovery of sugar from the cane was achieved at the maximum percentage of 9.55. In spite of the above undisputed facts the Petitioner claimed shortfall due to non-availability of sugarcane. Had there been shortage of cane, the petitioner would not have worked for 7 days in excess of the number fixed for the said crushing season.
10. The equitable Constitutional jurisdiction of this Court has been invoked ' to add to the unwarranted gains already acquired by the Petitioner, which cannot be permitted to be done.
11. ' The said petitions being without any substance were dismissed by short order dated 17-12-1990 and above are the reasons for the dismissal of the above two Petitions.