MALIK MUHAMMAD QAYYUM, J.- M/s National Bottlers (Pvt.) Ltd., the petitioner herein, is engaged in the manufacturing and production of aerated waters in the brand name of Coca Cola, Fanta and Sprite under the Franchise from M/s Coca Cola Export Corporation. These goods are liable to payment of Excise duty under the Central Excise and Salt Act, 1944. The petitioner had submitted its return for the production of which it was charged the excise duty and sales tax. However, the Deputy Collector Central Excise and Sales Tax served the petitioner with a notice dated 19.2.1991 alleging evasion of excise duty for the period October, 1986-88 and calling upon it to show cause as to why the duty and the tax evaded should not be recovered.
2. The petitioner contested this notice by giving its reply in which it was asserted that the plant of the petitioner was old and out-dated and, therefore, less efficient resulting in greater quantity of wastage and as such the mixing instructions could not be made the basis for determination of number of bottles of aerated water produced.
3. The Deputy Collector, Excise and Sales Tax after hearing the parties came to the conclusion that the evasion of excise duty and sales tax proved and the petitioner was asked to pay the same as alleged in the show cause notice. Feeling aggrieved the petitioner went in appeal which was, however, dismissed by the learned Collector (Appeals) on 28.7.1993. Feeling still dis-satisfied, a revision petition was filed by the petitioner which too was rejected by the Additional Secretary vide his order dated,16.10.1993. Hence this petition under, Article 99 of 199 of the Constitution of Islamic Republic of Pakistan, 1973.
4. Mr. Ali Sibtain Fazli, petitioner's learned counsel has contended that the order passed by the Collector (Appeals) is not based upon any legal premises and is conjectural in nature and that the Adjudicating Authority has failed to give effect to the plea of the petitioner that the plant of the petitioner was extremely old and out dated resulting in lower efficiency and high wastage and as such the petitioner was entitled to claim wastage at the rate of 12.06%. According to the learned counsel this fact is borne out by the physical inspection carried out by the staff of Directorate of Intelligence & Investigation on 14.3.1987 which proves that the wastage "by the plant of the petitioner was 12.06%. The learned counsel has also pointed out that this aspect of the matter has not been attended either by the Collector or the Revisional Authority.
5. MrA. Karim Malik, learned counsel for the respondents, on the other hand, has vehemently defended the impugned orders by contending that the Adjudicating Officer, namely, the Deputy Collector had adverted to all the aspects of the matter. In the submission of the respondent's learned counsel the question of wastage already stands determined by the judgment of this Court in W.P. Nos.7821/89, 7822/89 and 7966/89 in which with respect to the same plant, wastage allowed by the Department at the rate of 6% was upheld. He has also pointed out that the judgment of this Court delivered on 16.2.1991 has been upheld by the Supreme Court of Pakistan.
6. After hearing the learned counsel for the partied, I am of the view that neither the appeal of the petitioner nor the revision petition has been disposed of in accordance with law. Before the Collector, the case of the petitioner mainly rested on the plea that the plant of the petitioner was old and out-dated and the huge wastage results during the process of production has been verified by the staff of Directorate of Intelligence and Investigation vide their report dated 14.3.1987, wherein wastage was found to be 12.06%. Unfortunately while deciding the appeal this part of the argument completely escaped notice of the Collector who did not advert to the same at all. This failure to consider the important piece of evidence cannot be countenanced and the order of the Collector stands vitiated on this account.
7. So far as the revision order is concerned, the matter appears to be worse as no application of independent mind is discernible from the order of the Additional Secretary, who has proceeded to reject the arguments of the petitioner's learned counsel by observing that the impugned order is correct in law and there was no reason to interfere with the same. The Additional Secretary was dealing with the valuable rights of the parties, indeed with the subject matter of public revenue and was acting quasi if not in a judicial capacity. The disposal of such a cause in such a slipshod manner cannot be approved.
8. Before parting with the case, it may be stated that one of the grounds which prevailed with the Collector was that in the past the determination of wastage of 6% has been upheld by this Court and the Supreme Court of Pakistan. Same plea has been advanced before me by MrA. Karim Malik, Advocate, learned counsel for the respondents. However, I have purposely refrained myself from making any detailed comments on this aspect of the matter as the case is being remanded to the Collector and the rights of the parties might not be prejudiced in those proceedings. Suffice it to say that the dispute in those petitions related to the period up to 30.6.1985 while report of the Directorate of Intelligence & Investigation on which reliance was placed by the petitioner is of subsequent date namely 143.1987 and was not considered in the earlier proceedings.
In view of what has been stated above this petition is allowed, the impugned orders are declared to be without any lawful authority and of no legal effect and the case is remanded to the Collector (Appeals) Customs Central Excise and Sales Tax, Lahore keeping in view the observations made above and after holding any further inquiry, if he deems so necessary.
No order as to costs.