FAKHRUDDIN G. EBRAHIM, J.-The order impugned in this petition is one made by the Central Board of Revenue, Islamabad directing the petitioners to clear the outstanding arrears amounting to Rs.
45.52,423'19 towards excise duty in five monthly instalments of Rs. 19,10,444---69 each, beginning from the end of December, 1972. The arrears claimed is, for the purpose of the present petition, not in dispute and the challenge is founded on the sole ground of violation of principles of natural justice for it is allege that the impugned order was made without hearing the petitioners.
2. The facts giving rise to this petition are that on or about 21-3-1972 the petitioners received a demand notice from the Assistant Collector Central Excise and Land Customs, Hyderabad for a sum of Rs. 61,35,457'15 towards arrears of excise duty and additional duty, which the petitioners were called upon to pay within 15 days failing which action will be taken in accordance with section 11 of the Central Excises and Salt Act, 1944. The petitioners made a representation to the Central Board of Revenue in which were im--pressively detailed numerous reasons, including the loss of Rs.
82,81,000.00 occasioned to them by reason of the -events in the then East Pakistan, and prayed that the arrears be allowed to be paid in the monthly instalments of Rs. 25,000 00 along with the current duty. The Board by their letter dated 17th April, 1972 allowed the petitioners, provisionally for three months i.e., up to the end of June, 1972, as a special case, payment of arrears in ins--talment of Rs. 50,000 per month in addition to regular monthly instalment of duty, subject to its review on the expiry of the period granted. In reply the petitioners again impressed upon the Board to give them the facility to pay the arrears in monthly instalment of Rs. 25,000. A further represen--tation was addressed to the Board on 15th June, 1972 and in response the Board informed the petitioners that their representation regarding re-fixing of monthly instalments had been forwarded to the Collector of Central Excise and Land Customs, Hyderabad, who had been directed to dispose of the same under intimation to the Board after hearing the learned counsel appearing for the petitioners. The Collector heard the petitioners' counsel and by his order dated 19-8-1972 allowed the petitioners to clear the arrears in monthly instalments of Rs. 35,600 commencing from August 1972 as the factory condition of the petitioners was such that it could not afford to clear the arrears in a few instalments. It was expressly stated that the order made was provisional and subject to review. The petitioners in terms of this order started paying the monthly instalments but were by the impugned letter dated 19-12-1972 from the Superintendent Central Excise and Land Customs, Sukur informed that the Central Board of Revenue had fixed five monthly instalments for clearance of the outstanding arrears amount--ing to Rs. 45,52,423.19 beginning from end of December, 1972.
The petitioners again represented to the Central Board of Revenue but were informed by the Assistant Collector, Production Capacity, Central Excise and Land Customs, Hyderabad that the previous order made by the Collector, Central Excise and Land Customs, Hyderabad dated 17-8- 1972 was provisional and subject to review and the Central Board of Revenue had superseded that order and directed that the arrears be paid in five monthly instalments as aforesaid. The petitioners also received a direct letter from the Board dated 19th January, 1973 expressing its inability to accede to the petitioners' request in view of the new policy of the Government regarding early recovery of outstanding arrears.
3. Mr. Ghulam Hussain Abbasi, the learned counsel for the petitioner contended that the Collector, Central Excise and Land Customs, Hyderabad, after hearing the petitioners, by his order dated 17- 8-1972 permitted the petitioners to clear the arrears in the monthly instalment of Rs. 35,000 and notwithstanding the fact that this order was expressly provisional and subject to review, the petitioners were entitled to be heard if the same and sought to be revised to their prejudice. The argument is undoubtedly attractive but does not sustain a closer examination. The order made by the Collector or its revision by the Board has no foundation in law. Admittedly neither the Central Excises and Salt Act, 1944 nor the rules framed thereunder provide for grant of easy instalments for payment of excise duty. In fact both the authorities had acted in violation of rule 6 of the Production Capacity (Cotton Fabrics) Rules which provided that the annual amount of duty leviable for a financial year shall be paid in 12 monthly equal instalments. Mr. Abbasi contended that it was within the residuary powers of the Board to grant easy instalments. However, in the presence of the said rule 6 no such residuary power can be implied. The grant of instalments by the Collector was at best an indulgence or a concession to the petitioners. To begin with, the petitioners could not have claimed as of right that they be granted instalments. If such a request had not been acceded to there would have been no question of their asking for the opportunity to show cause against such refusal. By grant of instalments no right was created in favour of the petitioners. It will follow, therefore, that its withdrawal did not occasion in depriving the petitioners of an advantage recognized by law. In the absence of denial of a right the petitioners cannot claim benefit of a show-cause notice. Mr. Abbasi relied on the following observations of the Supreme Court in the case of Fazal Din v. Lahore Improvement Trust (PLD 1972 SC 223):---- "It is clear from the above that the right considered sufficient for main--taining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the cur--tailment of a privilege or liberty or franchise."
A Division Bench of this Court had the occasion to consider the aforesaid observations in the case of Ansar Ahmad v. K D. A. (PLD 1973 Kar. 302). In this case the petitioner was an applicant for allotment of a plot, his apple--cation was wrongly entertained and was declared successful in the public ballot and the result duly announced in the press. Later on the petitioner was informed that his application for allotment had been rejected on the ground that he eras not eligible for allotment. This action was challenged on the ground, among others that no such rejection could be made after the declaration of the result of the ballot, without giving the petitioner an opportunity of being heard. This Court held-and to which decision one of us is a party-that to start with the petitioner could not have claimed as of right that he must be given a plot and by the rejection of his application he was not deprived of any right. The obser--vations of the Supreme Court reproduced above were considered and distin--guished as follows:--- "With this observation I am of course in respectful agreement. But I cannot read the Supreme Court judgment as meaning anything more than this that the rule in question need not necessarily be a right in the strict juristic sense. I think there still must be some right which the petitioner is sought to be deprived of before be could claim the benefit of showing cause. In the Supreme Court case that right arose because the petitioner was admittedly the owner of a plot of land in the Scheme on which he had constructed a house and was on that account interested personally in the performance of a duty which in that case was the construction of a market. With utmost respect I do not think that the Supreme Court case has any real application to the facts of the present case.
I do not, therefore, think that the petitioners had any right to a show-cause notice."
4. Mr. G. H. Abbasi leaving no stone unturned on behalf of his clients, raised two additional contentions. His first contention was that even if it is assumed that the order made by the Collector dated 19-8-1972 had no statutory force, the same having been made at the instance of the petitioners and acted upon by the petitioners could not be varied. If I have understood the counsel correctly he was in fact raising a plea of estoppel. To this a short answer would be that the order made by the Collector was itself pro--visional and subject to review and that in any event it is not the petitioners' case that following the order of the Collector in their favour they had so altered their position that with its withdrawal they were adversely affected. When questioned as to the manner in which the petitioners were adversely affected Mr. Abbasi stated that after getting the long termed instalments from the Collector the petitioners diverted their funds towards the expansion but the petition contains no such allegation. The allegation appears to be an afterthought for it is contrary to their stand that they were throughout in serious financial difficulties. Moreover, the plea of estoppel cannot prevail against the statute, namely, the aforesaid rule 6. The other contention of the learned counsel was that it was not open to the respondents to urge as was done by Mr. Muzaffar Hassan, their learned counsel, that the orders made both by the Collector and the Board were illegal being in violation of said rule 6 for they would in that event be enabled to take advantage of their own wrong. The principle pressed into service is one embodied in the Legal Maxim "Nullus commodum capere potestade injuria sua propria" (No body can take advantage of his own wrong). The short answer to this argument is that to right a wrong and justify it by reference to law, in this case rule 6, cannot c amount to taking advantage of a wrong. If rule 6 did not permit the Collector or the Board to grant the instalments, it is open to the respondents to urge that their action in granting instalments to the petitioners was without lawful authority. Mr. Abbasi must rest content with the thought that he had suc--ceeded in persuading the respondents to acknowledge their error.
5. The result is that there is no merit in this petition and it is dismissed with cost.