' This judgment will dispose of Writ Petition No,2216 filed by Dr.Muhammad Sadiq and Writ Petition No,2522 of 1992 by Kabirwala Dairy involving common question of law and facts.
2. Dr. Muhammad Sadiq, Managing Partner S.B. Chicks, Sadiq Brothers Poultry, Khanewal is running his sale office at Old Chungi No,9, Khanewal Road, Multan, to sell and supply S.B. Chicks in the market. The Punjab Local Government and Rural Development Department through a Notification No,SOV-5-26/89, dated 24-4-1990 exercising the powers under sections 137, , 138 and 139 of the Punjab Local Government Ordinance, 1979 read with' Punjab Local Councils (Taxation) Rules, 1980, published schedule of export tax to be enforced from 1st July; 1990. At Serial No,59 of the schedule, the rate of the export tax for eggs, hens and poultry feeds has been fixed Re.1 pet quintal (100 k.g.).
This schedule having the uniform rate of the export tax is enforced throughout the Punjab, but Zila Council, Multan, subsequently issued its own schedule of export tax imposing the export tax at the rate of Rs,3 per quintal for the eggs, hens and poultry feeds whereas the chicks have been separately taxed as an independent item at the rate of Rs,10 per hundred at Serial No,51 of the said schedule. The petitioner has challenged this schedule to be illegal and without lawful authority, on the ground that schedule of Government of Punjab has the binding force and no local council is empowered to frame a schedule of its own choice. He argued that the schedule in question having no legal sanction behind it did not acquire a status to be acted upon.
3. The learned AA.-G. While raising the preliminary objection, submitted that without availing the remedy of appeal provided under the rules, the present petitions cannot competently proceed before this Court. He on merits submitted that the model schedule published by the Government under section 137 of Punjab Local Government, Ordinance, 1979, does not bind the Zila Council to levy only those taxes which are mentioned in the schedule and further rate of tax can vary from area to area and Local Government Ordinance, 1979 and the rules framed thereunder do not demand a uniform rate of tax.
' He urged that the tax proposal after process was put to the objections which were disposed of as provided under the rules. The petitioner did not file any objection to the tax proposal and has been paying the tax throughout, with no objection, hence he is estopped to challenge the tax through this petition.
4. Kabirwala Dairy, the petitioner in Writ Petition No,2522 of 1992 is a limited company which deals in processing and packing of milk in its factory installed at Khanewal-Kabirwala Road situated in the area of Bherowala, Tehsil Kabirwala having its office at Kabirwala. The District Council, Khanewal vide publication dated 8-5-1992 proposed to enhance the tax on milk pack alongwith juices and sugar items, but on the objection to the proposal of export tax to the effect that the item itself having been not included in the schedule, the enhancement without first imposition of the tax was not possible. Resultantly, a fresh notice was published in the Daily Nawa-i-Waqt dated 3-6-1992 to which objections filed were disposed of accordingly. The learned counsel contended that export tax was notified to be paid on milk pack with effect from 1-7-1992, without disposing of the objection to the tax proposal and providing an opportunity of hearing to the petitioner and following the procedure provided under the law. He urged that imposition/collection of export tax on milk pack is illegal and without lawful authority.
5. The respondent in the comments filed to the Writ Petition No,2522 of 1992, challenging the competency of this petition as preliminary objection, sought dismissal of this petition on the ground that without availing an alternate remedy of filing appeal provided under the relevant law, this petition cannot proceed. Dealing with merits of case, it has been explained that initially the milk pack was shown as a taxed item in the schedule published with the enhanced rate by mistake but later a corrigendum was issued on 3-6-1992 and the tax proposal with its aim and purpose was published in the Daily Nawa-iWaqt in a proper manner, and objections invited were disposed of strictly in accordance with rules. A period of more than thirty days was provided for filing the objections with a specified date for hearing the objections. The petitioner was granted further time for one week for the disposal of objection raised by him on his request on 10-6-1992 but he did not turn up. The notice was published on 8-5-1992 and the objections were invited by 10-6-1992 whereas the date of corrigendum was 3-6-1992, therefore, the petitioner having knowledge about the proposal appeared on 10-6-1992 and sought time but thereafter avoided to attend the meeting for the purpose of disposal of the objections.
' The taxation proposal alongwith the report prepared by the subcommittee was submitted to the house in its special meeting held on 15-6-1992 for approval and after necessary sanction, the notification was issued. It has been contended that the model schedule issued by the Government does not curtail the powers of taxation of local council envisaged under the law on the subject.
6. The sole question involved in the abovementioned petitions is whether a Zila Council is not competent to levy Export Tax on the items other than those specified in the schedule published by the Government applicable throughout the Punjab or classify the items mentioned therein and charge tax on a different rate to that of given in the schedule. Section 137 of the Punjab Local Government Ordinance, 1979 provides that a local council subject to the provisions of any other law may and if directed by the Government, shall levy all or any of the taxes enumerated in the second schedule. A Zila Council is authorised to levy all taxes including the export tax on goods as provided under Part II of the second schedule to the Punjab Local Government Ordinance,' 1979. There is no precise definition, and detail of goods given either in the schedule or under Punjab Zila Councils (Export Tax) Rules, 1990. Resultantly, the general definition of goods shall be taken for the purpose of Export Tax to be levied under the schedule. According to the Black's Law Dictionary: ' All things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which price is to be made, investment, security and things in action. Also included the unborn animals and growing crops and other identified things attached to the reality and fixture.
' Items are merchandise, supplies, raw materials or furnished goods. Sometime the meaning of 'goods' is extended to include or tangible items as in the phrase 'Goods and Services'. All things treated as movable or the purpose of contract, stockage or transportation .
' Keeping in view the definition of goods Part II of the second schedule is not confined to the particular goods or things falling within the definition of goods.
7. Punjab Zila Councils (Export Tax) Rules, 1990 define Export Tax Schedule as under: ' Export Tax Schedule means the export tax schedule notified by the Government.
' In exercise of the powers under sections 137, 138 and 139 of the Punjab Local Councils Ordinance, 1979 read with Punjab Local Councils (Taxation) Rules, 1980, Government of the Punjab published a schedule of Export Tax for Zila Councils in the Punjab to be enforced from 1st July, 1990. This schedule does not separately classify chicks and milk pack as independent items for the purpose of export tax.
8. The Punjab Zila Councils (Export Tax) Rules, 1990, provide a scheme for the purpose of collection of Export Tax and the matter relating therewith including the Tax Administration, the presentation of the goods at the Check Post, assessment and exemption of Tax, inspection, checking of the goods or organisation of rates, evasion of the tax, and seizure of goods. These rules further provide remedy of appeal and revision against the assessment and order passed under the rules.
' Punjab Local Councils (Taxation) Rules, 1980 provide a procedure for approval of taxes to be levied by the local council, specified under second schedule to the Local Government Ordinance, 1979 whereas a Zila Council by virtue of Punjab Zila Councils (Export Tax) Rules, 1990 is empowered to assess and collect the Export Tax. However, a Zila Council does not enjoy powers to levy a tax in conflict with the schedule to the Punjab Local Government Ordinance, 1979 and the Rules framed thereunder.
9. It is not disputed that the items in question are not goods and cannot be subjected to export tax, the controversy raised was that no Export Tax could be assessed and collected by the Zila Council on the products of the petitioner C for want of the inclusion of same, in the schedule published by the Punjab Government.
10. The collection and assessm ent of the tax on the items not separately classified in the schedule is undoubtedly a matter to be necessarily challenged before the Appellate Authority as the proposition involved did not relate to the D interpretation of Rules on the subject to be directly brought before this Court without availing the remedy of appeal and revision specifically provided against the assessm ent which includes levying of tax and collection of same under the rules on the subject.
11. While summing up, I am of the view that this Court in its Constitutional jurisdiction shall not be prepared to enter into the matter falling within the jurisdiction and competence of the appellate or revisional authority. The petitioners in both the above petitions without first getting a verdict on this mixed question of fact and law by availing the effective statutory remedies before the concerned authorities cannot have recourse to this Court. Both the petitions are accordingly dismissed with no order as to costs. 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.