1. IFTIKHAR MUHAMMAD CHAUDHARY, J.---It is the case of petitioner that respondent No.3, Messrs Ziarat Enterprises Octroi Contractor, for collecting Octroi for Town Committee, Gadani, obstructed his Trucks loaded with scrap by raising demand of octori on the valuation of the ship plus other taxes including the Excise duty. Learned counsel for petitioner pointed out that initially on 30th July, 1995 payment of octroi was demanded inclusive of excise duty but subsequently a revised demand was made vide letter dated 18-12-1995, including Central Excise Duty in ad valorem cost of the ship for the purpose of charging octroi duty. It is also averred by petitioner that to calculate ad valorem cost of imported ship, the excise duty cannot be added in it. Therefore, having left with no appropriate, remedy, against the action of respondent No.3, for demanding octroi on adding the excise duty in ad valorem valuation of the ship, instant constitutional petition has been filed.
2. Messrs Zahid Alvi and Shakeel Ahmad, Advocates appeared for petitioners. Whereas Mr. Yakub Khan Yousafzai, A.-G. Appeared on behalf of Secretary, Local Government. Messrs Muhammad Fazil Lodhi and Pervez Tanoli, Advocates represented Town Committee, Gadani and Mr. Ashraf Khan Tanoli, Advocates, appeared to respondent No.3, Messrs Ziarat Enterprises.
3. Before dilating upon the merits of case, it would be appropriate to dispose of preliminary objection raised by learned Advocates for respondents, as well as Advocate-General, on the maintainability of petition, without availing alternate remedy of appeal, provided under Rules 48 and 216 of the West Pakistan Municipal Committees Octroi Rules, 1964, against impugned assessment of Octroi. In this behalf Mr. Ashraf Khan Tanoli, Advocate, stated that when law itself provides alternate remedy for the redressal of grievance, petitioner cannot invoke jurisdiction of this Court in the garb of argument, that departmental remedy is not efficacious, because the notice of demand of octroi was issued by the Octroi Contractor, way back in December, 1995, whereas petition has been filed on 4th April, 1996, almostly after about four months from the date of alleged cause of action, therefore, petition deserves dismissal on this sole ground. Reference to substantiate the objection was made by him to PLD 1976 Kar. 1011, 1996~SCMR 700, 1995 CLC 1809 and C. Ps. Nos. 76 and 143 of 1996. In this very context, learned Advocate-General also relied on the judgment reported in PLD 1966 Lah. 492.
4. Messrs Zahid Alvi and Shakeel Ahmad, Advocates, pointed out that as in this case right to collect octori has been leased out by the Town Committee, Gadani, therefore, in view of specific bar contained under rule 226 of the Octroi Rules, no appeal is competent. They also urged that in PLD 1982 Kar. 653, learned Division Bench examined the implication of Rules 48 and 216 of the Octroi Rules, and held that appeal is not an adequate and efficacious remedy in the circumstances and disposed of the Constitutional petition, on merits. They also made reference to PLD 1982 Quetta 19 and PLD 1990 SC 399.
5. To settle the controversy, it is to be seen that in. The instant case rights of collection of octroi have been leased out to respondent No.3, by Chairman, Town Committee, Gadani, in accordance with Rule 225 of the Octroi Rules, 1964. Therefore, question would be that if an assessment for the recovery of octroi has been made by the representative of the Contractor, his such action would be appealable or not. On considering the object of rule 48, it.Emerges that person aggrieved from the demand of octroi assessed by the Octroi clerk or if there is any doubt or dispute about the assessm ent of octroi, appeal lies to the Taxation Officer in accordance with the provisions of Chapter XXVII of the Octroi Rules, 1964. Reference whereof, indicates that under rule 216, Forum of the Appeal has been provided by West Pakistan Municipal Committees (Appeal) Rules, 1960 against the assessm ent made and order issued under the Rules. As far as this Rule is concerned, its application has been specifically debarred under Rule 226, clause (d)(i), in the matters where the collection of octroi in any Municipality has been leased out. So far the judgments cited by learned counsel for respondents are concerned, those are distinguishable, because in th6se cases, maintainability of appeal being an alternate remedy against the assessment or demand or any other dispute, concerning collection of octroi made by a contractor, to whom right of collection of octroi has been leased out, was not under consideration. Therefore, we feel no hesitation in concluding that appeal under Rules 48 and 216 of the Octroi Rules, 1964, was not competent, if the demand of octroi is made by Contractor to whom rights of collection of octroi have been leased out. Thus the objection raised in this behalf is accordingly ruled out.
6. On merits, Mr. Zahid Alvi, learned Advocate, argued that respondent---Octroi Collector, is not authorised to demand Octroi on the amount, which also includes central excise duty, as such tax cannot be added to the value of vessel, because the determining factor of the rate of Central Excise duty is not the Collector Customs. He further emphasised that excise duty is chargeable on the scrap of the ship after its dismantling whereas Contractor had started demanding ad valorem value of the ship, after issuance of Notification No.SRO 484(1)/95 dated 14th June, 1995, which is illegal. As such, action of respondent No.3, is without lawful authority. In this behalf he heavily placid reliance on 1992 SCMR 710.
7. On the other hand, Mr. Ashraf Khan Tanoli, Advocate, for private respondents rebutting the argument of petitioner's counsel, emphasised that 5% Excise Duty has been charged on the value of ship vide Notification referred to by petitioner's counsel. Therefore, in pursuance of Notification No.501882/81 (PLGB) AC/V dated 8th April, 1992, issued by the Government of Baluchistan, the Contractor on behalf of Town Committee, Gadani, can charge octroi on the import of ships, boats and floating structure, on the basis of ad valorem at the rate of Rs.1.50% Import of Rs.100 value, under the West Pakistan Town Committees Octroi Rules, 1964 and this very Notification had provided that ad valorem cost shall also include taxes, duties, freight charges and penalties.
8. It is to be seen that under Finance Act of 1995, 5 % ad valorem excise duty wag levied on the waste scrap etc. Relevant extract from the Notification for sake of convenience is reproduced hereinbelow:-- "GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE AND ECONOMIC AFFAIRS Islamabad, the 14th June, 1995.
9. NOTIFICATION (Central Excise)
10. S.R.O. 484(1)/95.---In exercise of the powers conferred by subsection (1) of section 12A of the Central Excises Act, 1944 (1 of 1944) the Federal Government is pleased to direct that the following further amendments shall be made in its Notification No.S.R.O. 546(1)/94, dated the 9th June, 1994, namely:--
(i) After Heading No.7020.0000 and the entries relating thereto in columns (2) and (3) the following new heading and the entries relating thereto shall be inserted, namely:-- "RespectiveWaste, scarp, sheets, slabs,Five per cent. Ad-- headings ofroad, bars, shapes and valorem."; Chapter 72.Plates obtained through any process of dismantling or breaking of vessel and other floating structure of heading 8908.0000.
11. It is also admitted as per the Bill of Entry placed on record by petitioner itself that 5 % ad valorem excise duty was added in the value of ship, which was paid alongwith other duties. At this stage, reference to the judgment relied upon by petitioner's counsel in the case of Declaration of Pakistan through Secretary, Finance and another v. Mehmood (Pvt.) Limited and 7 others reported in 1992 SCMR 710, is relevant. But before considering the ratio decidendi of this judgment, it may be noted that in this case initially respondents/Ship Importers challenged vires of levying the excise duty on iron and steel plates or ship plates, recovered from the process of dismantle or breaking of 'ship under Amending Ordinance III of 1988, by filing number of Constitutional petitions before this Court which were accepted holding that ship plates and other materials recovered from breaking of vessels are not liviable to excise duty. But the Hon'ble Supreme Court, amongst others also granted leave to appeal to examine 'whether Central Excise Duty is liable on ship plates etc. Which are recovered from ships and vessels through a process of manufacture by dismantling a ship or vessel. In the judgment the available provisions of law on the subject were surveyed and it was held as follows:- "There is no inviolable rule of law, nor any 'Constitutional command, that the excise duty is leviable only on the process of manufacture and on no other activity, legislative dispensation and intent being irrelevant or subordinate. It is only by reference to legislative provision (Preamble of the Act and section 3) that such a restriction has been inferred by the High Court. But then that legislative intent is manifestly overridden, departed from and not followed, ignoring a specific law in the form of Ordinance No.III of 1988 bringing within the not of excise tax the ship--breaking activity and on the recovery of iron plates etc. Thereby. Not one law on this specific subject was framed but three in quick succession that is:
(i) Ordinance No.III of 1988;
(ii) Ordinance No.XXII of 1988; and
(iii) Ordinance No.VI of 1988.
12. It is not the contention and never was that these laws were ultra vires for any reason. Even if the Schedule of the Act is given a subordinate position as was done in Premier Mills Ltd. v.
13. Commissioner of Income-- tax (1985) 152 ITR 457, the legislative intent and the object of this specific legislation remains beyond doubt. Such intent and purpose must be given effect to and not thwarted on any vague and nebulous theoretical concept. "
14. So in view of the above conclusion of Hon'ble Supreme Court, we would proceed to examine whether for the purpose of charging octroi, Town Committee, Gadani or its representatives including Contractor for collection of Octroi can demand the Octroi including the central excise duty at the ad valorem value of the ship. The Government of Baluchistan in the Notification dated 8 April, 1982, has authorized the Town Committee to collect octroi. Contents of the Notification reads as under:--- "Dated Quetta, the 8th April, 1982 No.5-182/81 (PLGB) AOIV.---In exercise of the powers conferred by subsection (2) of section 137 of the Baluchistan Local Government Ordinance, 1980 (II of 1980) read with section 70 of the said Ordinance, the Government of Baluchistan is pleased to direct that the Town Committee, Gadani shall impose a tax on the import of ships, boats and floating structure, on the basis of ad valorem, at the rate of Rs.1.50 (Rupees one and paisas fifty) per import of Rs.100 value, under the West Pakistan (Town Committees) Octroi Rules, 1984, with immediate effect.
2. The Government of Baluchistan is further pleased to direct that ad valorem costs shall also include tax, duties, freight charges and penalties.
15. By Order Governor Baluchistan. "
16. On reading Notification one thing becomes very much clear, that octroi is to be recoverable on the basis of ad valorem at the rate of Rs.1.50% and ad valorem cost also include taxes, duties, freight charges and penalties. On placing this Notification as well as the Notification dated 14th June, 1995, and bill of entry, in juxtaposition, no other conclusion can be drawn, except that central excise duty has been added in the ad valorem cost of the ship, therefore, Contractor/respondent No.3, had lawful authority to recover octroi from , petitioner as per demand, contained in letter dated 18-12- 1995.
17. Thus in view of above discussion, no case is made out for issuance of writ. As such, the petition is dismissed, leaving the parties to bear their own costs.