I. MAHMUD, J.-This Constitutional Petition under Article 19) of the Con--stitution prays for issue of an appropriate writ to quash the impugned orders passed by the Central Board of Revenue, the respondent No. 2, withdrawing its earlier orders sanctioning abatement of duty in respect of cotton fabrics under the Excise Duty on Production Capacity (Cotton Fabrics) Rules, 1968, as being without lawful authority and of no legal effect. It arises in the following circumstances.
2. The petitioner, Dost Mohammad Cotton Mills Ltd., owns a textile Mills at Karachi and carries on business of spinning cotton yarn and the manufacture of cotton fabrics. The production capacity of - the petitioner's weaving section manufacturing cotton fabrics, was notified by the Central Board of Revenue under section 3(4) of the Central Excises and Salt Act, 1944 (hereinafter referred to as "the said Act") on 22-4-1968 at 60,73,258 square yards. On basis of 150 looms. The petitioner went in review to the Review Board, which maintained the said figure, except that the superfine category was merged with the fine. The petitioner then submitted an application to the Standing Tribunal, Production Capacity, Lahore for re-examination of the production capacity. The Standing Tribunal reduced the production capacity by its Order No. 53, dated 16-5-1972, and it fixed the same at 51,94,655 square yards on basis of 150 looms with effect from 1-5-1968. The Final Reduced Production Capacity on 300 looms (less reduction of 10%) came to 93,53,979 square yards, which was allocated among the three categories of fabrics, viz., Coarse, Medium and Fine on the percentages adopted for fixation of the original. The break-up of the allocation of the Final Notified Production Capacity on 300 looms was as follows : Coarse ... 53,19,605 square yards (56.87%)
Medium ... 39,21,181 square yards (41.92%)
Fine ... 1,13,193 square yards (1.21 %)
The total amount of duty leviable on the aforesaid production capacity for the financial year 1969- 70 was Rs. 13,61,473.90.
3. During the financial year 1969-70, the petitioner's Mill remained closed for 37 shifts due to labour strike, which fact was duly intimated to the Central Excise Authorities, the respondents Nos. 3 and 4, regarding which there is no dispute. Accordingly, the petitioner submitted a claim to the Central Board of Revenue for abatement of duty in respect of the 37 lost shifts under section 4(1) of the Production Capacity (Cotton Fabrics) Rules, 1968 (hereinafter referred to as "the said Rules"). In addition, the petitioner also claimed abatement of duty under rule 5 of the said Rules for shortfall in production. In the statement filed by the petitioner, the actual total production claimed was 68,23,417 square yards, resulting in shortfall of 57,70,595 square yards. Both the claims were allowed by the Central Board of Revenue. The abatement in respect of the 37 lost shifts was sanctioned under section 4(1) of the said Rules to the extent of Rs. 65,637.26 by its order dated 12-1-1971. The abatement in respect of the shortfall in production was sanctioned under rule 5 of the said Rules to the extent of Rs. 34,862 by its order dated 12-1-1971 and 31-3-1971. The extent of the shortfall in production of 57,70,595 square yards. Claimed by the petitioner, was consieered to be substantial when compared with the then prevailing notified production capacity (prior to its reduction later on by the Standing Tribunal) and that the reasons for such decrease in production were beyond the control of the petitioner.
4. After the Standing Tribunal bad reduced the notified production capacity of the Mill by its Order No. 53, dated 16-5-1972 with effect from the financial year 1969-70, as stated above, the Central Board of Revenue considered that the petitioner had become disentitled to claim the abatements granted earlier under rule 4 and rule 5 of the said Rules. Accordingly, by the two impugned orders, dated 7-9-1973 (Annexures 'A' and 'B' to the petition), the Board withdrew both the amounts sanctioned as abatements, namely, the amount of Rs. 65,637.26, which was sanctioned in respect of the closer of the 37 shifts under rule 4(l) of the said Rules, and the amounts totalling Rs. 34,862 which were sanctioned under rule 5 of the said Rules for shortfall in production. The Collector, Central Excise and Land Customs, the respondent No. 3, was directed to recover the said amounts from the petitioner within 15 days from the receipt of the said orders.
5. Being aggrieved by the aforesaid impugned orders, the petitioner filed a Revision Application to the Government of Pakistan, the respondent No. 1, under section 36 of the said Act. The Revision Application was heard by a Member of the Central Board of Revenue, the respondent No. 2, but it was rejected and the petitioner was accordingly informed by letter dated 4-3-1974. The petitioner has, therefore, invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution praying that the record and proceedings of the case be called and a writ be issued quashing the impugned orders Annexures 'A' and 'B' to the petition, by which the amounts sanctioned as abatements from duty were withdrawn.
6. The petition was resisted by the respondents on the grounds mentioned in the counter-affidavit of S. I. Mustafa, the Superintendent, Central Excise and Land Customs, Karachi, the respondent No.
4.
7. We have heard Mr. Mansoor Ahmed Khan, learned Advocate for the petitioner, and Mr. Saeed A.
Shaikh, learned Advocate for the respondents.
8. Before considering the submissions of counsel, it would be convenient to reproduce the relevant Rules of the Production Capacity (Cotton Fabrics) Rules. 1968. Rule 4(1) and rule 5 read as follows:- "4-(1) If, in a financial year, a factory- (i)--------------------------------------------------------------------------------------- ---------
(ii) situated in West Pakistan works for less than eight hundred and ninety-seven shifts; and the Central Board of Revenue is satisfied that any shifts short of the number specified in clause . . . . . (ii), . . . . ., could not be worked for reasons which were b--yond the control of the manufacturer, then, for each shift in respect of which it is so satisfied, the Central Board of Revenue may allow an abatement from the duty leviable under rule 3, the rate of abatement for each such shift being arrived at by dividing the total amount of duty leviable for that financial year by the number of shifts stipulated in clause . . . . . .(ii). . . . . . .
Provided that, . . . . . . . .
Provided further that no abatement of duty shall be allowed for any reason whatever if the total production of cotton fabrics of a factory, in a financial year does not fall short of the production capacity of such factory; and, if such total production falls short of the production capacity, the abatement shall not exceed the difference of the duty leviable on the production capacity and the excise duty which would have been leviable on the cotton fabrics produced in the year had the duty on production capacity not been levied . . . . .
5. If, during the period commencing on the 1st May, 1968, and ending on the 30th June, 1963, or in any financial year thereafter, the actual production of cotton fabrics of a factory falls chart of its production capacity to such an extent as the Central Board of Revenue considers, in its discretion, to be substantial, and if the Central Board of Revenue is satisfied that the reasons for such decrease to production were beyond the control of the manufacturer, then the Central Board of Revenue may, with the prior approval of the Central Government grant abatement of duty leviable under rule 3 at such rate and to such extent as it may consider proper."
Although it is not so stated in the impugned orders, the reason why the abatements were withdrawn by the Board, was that the second part of the second proviso to rule 4 of the said Rule, reproduced above became applicable to the petitioner when the production capacity of the petitioner's Mill was reduced by the Standing Tribunal with effect from the relevant financial year 1969-70. The case of the respondents is that the duty leviable on the production capacity for the financial year 1969-70 as finally reduced to 93,53,979 square yards by the Standing Tribunal, was Rs. 13,61,437.90; whereas the excise duty which would have been leviable under section 3(1) of the Act on the actual production of 68,23,417 square yards, shown by the petitioner in its statement accompanying its claim for abatement, came to Rs. 13,643,33.50. Thus, the second proviso became applicable and, as such, the petitioner was not entitled to any abatement in respect of the closer of the 37 shifts. As there was no shortfall the actual production being more than the production capacity-the petitioner also become disentitled to any relief under rule 5 of the said Rules.
10. The main submission of Mr. Mansoor Ahmad Khan, learned counsel for the petitioner, is that the Central Board of Revenue misread the second part of the second proviso of rule 4(i) of the said Rules above-- quoted. According to counsel, the figure of actual production of the cotton fabrics viz. 68,23,417 square yards should have been converted on the basis of 57.3 picks to an inch and not on 54.75 picks to an inch, which was actually employed in the production of the cotton fabrics and that, thereafter, the figure so arrived at, should have been allocated separately to each of the three categories of the fabrics in the percentages adopted for fixing the notified production capacity, I e.
Coarse 56.87 %, Medium 41.91 % and Fire 1.21 % and the excise duty calculated separately thereon.
That unless a common denominator of 57.3 pick to an inch is adopted. The comparison between the figures of actual total production with the figure of notified capacity would be meaningless, against law and unjust. According to counsel. If this approach is adopted, the figure of total production of 68,23,417 square yards, would be reduced to 65,19,285 square yards, and then there would be a difference between the capacity duty and the excise duty on this reduced figure which would come to Rs. 4,12,592 00. And, as this difference far exceeds the amount of Rs. 65,637.26 granted as abatement, the abatement should not have been withdrawn.
11. It is true that in the date regarding basis of assessment of the capacity tax relating to the weaving section of the petitioner's Mill, vide letter of the Central Board of Revenue No. 1/22- CX(RB.11)/68, dated 12-10-1970, "the average pick" is shown=57.3. Incidentally, "pick" is a textile term used to describe the fineness of a fabric by reference to the number of weft threads to an inch. In calculating the production capacity per total shifts in square yards per loom, a certain working formula was employed, in which "the average pick" is shown in the denominator. If the denominator in a fraction is increased from 54.75 to 57.3, the resultant figure would naturally be reduced. We have considered this submission of counsel and, in our opinion, it is ingenious, to say the least. But there is nothing in the second proviso of rule 4(1) of the Rules even to suggest that the total production of the cotton fabrics produced, is to be calculated with reference to any pick. The petitioner was free to manufacture more of any category of the fabrics and it appears that it produced a much larger quantity of medium category fabrics, the excise duty on which would alone have been more than Rupees twelve lakhs. If the petitioner's figure of total production of the fabrics is more, because of a larger production of a particular category of fabrics, by employing the lower pick of 54.75, than would have been the case had it employed the higher pick to 57.3, the petitioner has to thank itself for it. The expression "total production" of cotton fabrics produced in the Mill, means the actual production and not a notional production, such: as is suggested by Mr. Mansoor Ahmed Khan. The expression "cotton fabrics production in the year" at the end of the second proviso, clearly means the fabrics actually produced. Again, the difference of duty mentioned in that proviso is to be calculated with reference to the duty leviable on production capacity and the excise duty on the cotton fabrics "produced" in the year bad the duty on production capacity not been levied. The excise duty is levied under section 3(l) of the said Act on goods "produced or manufactured". Thus it is clear that the total production means the goods actually produced or manufactured. There is, therefore, no warrant for the contention that the Central Board of Revenue misread the proviso. In our opinion, the submission of counsel is misconceived and must be rejected.
12. The next submission of Mr. Mansoor Ahmad Khan is that the Central Board of Revenue, respondent No. 2, had no jurisdiction to hear the Revision Application which was filed by the petitioner to the Government of Pakistan, respondent No. 1, under section 36 of the said Act, which the latter passed on to the Board of Revenue for hearing and disposal; and, that therefore, the order dated 4-3-1974, rejecting the Revision Application,. Is bad in law. As rightly submitted by Mr. Saeed A. Shaikh, learned counsel' for the respondents, the impugned orders withdrawing the abatement of duties (Annexures "A" and "B" to the petition) were passed with the prio approval of the Federal Government and, as such, no revision lay under section 36 of the said Act. Section 36 provides for a revision to the Federal Government against any decision or order passed under section 35 or 35(A) of the said Act. Section 35 provides for an appeal from any decision or order passed by a Central Excise Officer under the Act, while section 35(A) provides for a suo motu revision by the Central Board of Revenue. Therefore, there is force in the submission of Mr. Saeed A.
Shaikh, that the revision was not maintainable under section 36 of the Act, and that at best, it was treated as a representation and rejected as such. The submission of petitioner's counsel cannot, therefore, be accepted.
13. The next submission of Mr. Mansoor Ahmad Khan was that the impugned orders were passed without notice to the petitioner and further that they were not speaking orders, as no reasons were mentioned for withdrawal of the abatement of duties, and as such they are bad in law. With regard to the point regarding notice, we find that the petitioner has not taken this plea in the petition, nor do we know whether the point was agitated in the Revision Petition, copy of which is also not forthcoming. We cannot therefore, permit counsel to argue this point, and therefore, it is not necessary to consider the submission of Mr. Saeed A. Shaikh that under rule 10 of the Central Excise Rules, 1944, the abatement of duty erroneously allowed, must be paid on receipt of a written demand notice, implying thereby that the petitioner was not entitled to be heard. With regard to the absence of reasons in the impugned orders, no doubt the Central Board of Revenue was exercising quasi-judicial function and the principles of natural justice required the authority to state the reasons for passing the adverse orders. But it seems to us that the orders when read as a whole, leave no doubt that the withdrawal of the amounts sanctioned as abatement of duties, was for the reason that the Standing Tribunal had reduced the notified capacity of the petitioner's Mill for the relevant financial year 1969-70, thereby advising the petitioner that it became disentitled to the abatement of duties, granted earlier. Even if the point has any merit, the grant of relief in writ jurisdiction is entirely in the discretion of the High Court. The petitioner was not abatements granted by the Central Board entitled to retain the benefit of the of Revenue to which it became disentitled as a re3ult of the reduction in the notified production capacity by the Standing Tribunal, which took effect for the relevant financial year. As observed by their Lordships of the Supreme Court in Walt Muhammad and others v. Sakhi Muhammad and others (1) and The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (2) the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if. Because of any technical reason, an order made by a tribunal is not found justifiable, the well-settled principle being that the writ jurisdiction of the High Court is not to be invoked in aid of injustice.
14. For the foregoing reasons, we find no force in this petition, which is accordingly dismissed with costs.