1. ' WAJIHUDDIN AHMED, J.---The facts involved in this appeal, as convassed and argued before the Rawalpindi Bench of the Lahore High Court in Writ Petition No,967 of 1995, allowed on 1-4-1996, reflected in the High Court order, are these:-- "The petitioner-company acquired an old paper manufacturing facility located at Charsadda, N.- W.F.P. In the year 1992 in insolvency proceedings and started production of writing paper. Later the petitioner-company added certain plant and machinery to existing facilities and started production of sack paper used for packing of cement in 1993. The petitioner has been paying sales tax and excise duty on its product since 1993 and submitted the present petition on the ground that imposition of excise duty on its product was illegal and violative of all the norms relating to levy of such imports whereas imported product was granted exemption from levy of the excise duty.
2. Report and parawise comments were called for from the respondents by order dated 2-8-1995, which were submitted. Rejoinder was filed by the petitioner and thereafter, learned counsel for the parties were heard in the matter.
2. 3 Learned counsel for the petitioner submitted that the petitioner was the only manufacturer of the sack kraft paper in the country and as such was a pioneer in this field and had produced about 19,000 metric tons of sack paper during the year 1995 whereas the total domestic consumption of this type of paper was about 35,000 metric tons for the same period. It was submitted that petitioner's product was subjected to levy of 5% ad valorem excise duty whereas the imported product was exempt from such a 'levy and the petitioner was, thus, being discriminated against and that the petitioner's product did not remain competitive in the market. It was contended that the respondents were perpetrating economic injustice on the petitioner by giving an undue edge to importers whereas the policy should have been to promote the local industry as against the foreign manufacturer. It was argued that the impost was discriminatory and violative of Article 8, was placed on Jibendra Kisore Achharyya Chowdhury v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 Supreme Court 9). It was submitted that SROs. Nos.546(I), 655(I) of 1994 and others regarding levy of excise duty on the manufactured product of the petitioner being ultra wires the provisions of Constitution were liable to be struck down. Learned counsel for the petitioner submitted that the respondents went a step further in giving undue benefit to importers and reduced Customs Duty payable on imported sack-paper from 65% to 50% but no corresponding relief was given to the petitioner. It was contended that importers of finished product were paying about 25% less duty on their imports and as similar treatment was not given to the petitioner, it had further exacerbated the misery of the petitioner. Learned counsel also submitted a comparative statement showing cost of locally produced extensible sack craft paper to be Rs,46,217 per metric ton as against cost of Rs,43,648 of imported paper and submitted that due to levy of 5% excise duty and non-reduction of customs duty to the tune of 25% the petitioner's product was costlier by Rs,2569. It was further pointed out that most of the units which import sack kraft are located in Gadoon-Amazai area in N,-W.F.P. Which were exempt from payment of sales tax, were getting 50% concession in water and power tariffs and paying 25% less customs duty which factors amply showed that the petitioner was being discriminated against badly. It was submitted that it was in national interest to protect indigenous industry particularly a fledgling industry like the petitioner. Respondents on the other hand raised a number of objections of technical nature in the first instance and submitted that the petition could not have been filed at Rawalpindi Bench of Lahore High Court and ought to have been filed at Peshawar in N.-W.F.P. It was next contended that the petitioner had been paying excise duty on its product since 1993 and was estopped to challenge the levy now. Learned counsel for the respondents submitted that excise duty was leviable on all locally manufactured goods under the provisions of Central Excises Act, 1944 and same was being done in the case of the petitioner's product and it could not be granted exemption as was being claimed. It was submitted that the petitioner was a local manufacturer and was a class apart from importers of sack paper who were being charged Customs Duty at much higher rates whereas the petitioner's product was being charged excise duty at the rate of 5%. It was submitted that the petitioner was producing paper from imported wheat-straw pulp which was being subjected to customs duty at concessional rate of 15% only while the importers were paying customs duty @ 65% under PCT Heading 48.02 and, thus, the petitioner was being given preferential treatment. It was submitted that imported goods could be subjected to payment of customs duty only and excise duty could not be levied on the imports which was in accord with Tariff Policy of the Federal Government. To meet the argument advanced on behalf of the petitioner that it was put in disadvantageous position when customs duty on imported paper was reduced by 25%. Learned counsel for respondents submitted that this aspect required some sort of factual enquiry which could not be done in these proceedings. However, no explanation was given as to what were the reasons which prevailed with the Central Board of Revenue for reducing the customs duty on imported sack kraft paper."
3. ' Allowing the petitioner, as above, the High Court found that because customs duties on similar imported goods had been reduced from 65 to 50% ad valorem and similar relief was not provided to the petitioner-Flying Kraft Paper Mills (Pvt.) Ltd. In respect of 15% customs duty payable on the raw material imported for use in the production of like goods, the petitioner was entitled to refund of the customs duty paid by it on the import of the raw material. Regarding the Company's liability to pay 5% excise duty on the manufactured goods, the High Court opined that since the Federal Government was empowered to grant exemption under section 12-A of the Central Excises and Salt Act, 1944, relative to payment of such duty, a representation could be made to the said Government for seeking exemption. As to the preliminary objection pertaining to maintainability of the petition in the Lahore High Court, the same was overruled.
4. ' Leave was granted in this Court to the Collector Customs, the Central Board of Revenue and the Federation of Pakistan, on 26-11-1997 on the ground that no relief was claimed by the Company before the High Court in respect of payment of customs duty leviable on the import of raw material used by it, the only grievance in the petition having been directed to challenge the two notifications referred above and pertaining to the levy of 5% excise duty on home consumption of the manufactured goods. Here 'also, it was noted in the leave-granting order that while the High Court granted relief in respect of customs duty, none was allowed as regards the actual relief sought pertaining to the levy of excise duty. In the leave granting order, however, the question of maintainability of the petition in the High Court was set at rest referring to Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue, PLD 1997 SC 334 and Flying Kraft Paper Mills (Pvt.) Ltd. v.
5. Central Board of Revenue, Islamabad, 1997 SCM R 1874. As to interim stay of the High Court order, while such was granted on 26-11-1997, the same was varied in this Court subsequently on 25-3- 1998, allowing protection to the company subject to its furnishing security to the relevant functionaries.
6. Examining the impugned order of the High Court, we find that no objection, whatever, was taken before the High Court while entertaining and deliberating upon the company's challenge to the levy of customs duty on the raw material designated to be utilized by it in the manufacture of paper. This transpired notwithstanding the fact that the relief claimed by the company in its petition before the High Court did not cover that question, albeit making a generalized mention of such aspect in the recitals appearing in the memo. Of the petition. We asked the learned counsel appearing for the official appellants as to whether such objection was or was not raised by the functionaries in the memo. Of the petition/appeal lodged in this Court. He was unable to show any such objection. In this background, the fact of the High Court having granted a relief not specifically sought from it pales into insignificance. Even otherwise, unless equities lie otherwise, a Superior Court, administering a Constitutional remedy, can extend relief, although not claimed but otherwise directly flowing from the controversy being adjudicated upon by it. Nothing, therefore, turns on the technical ground on which leave was granted, as above, and this appeal merits dismissal on that score alone.
7. However, in order to satisfy ourselves whether the High Court correctly administered the Constitutional jurisdiction vesting in it, we enquired from the learned counsel for the appellants as to whether it was not correct, as found by the High Court, that an element of discrimination and unequal treatment under law came to occupy the field when customs duty on imported paper was reduced from 65% to 50% ad valorem, without so much as giving a thought to the plight of manufacturers of indigenous paper, who continued to labour under the burden of a pre-existing and undisturbed 15% charge of customs duty on their imported raw material. What is more, we also cannot ignore the fact that while no excise duty is payable on imported paper, even though unexceptionable on the touchstone of law, the company is made to pay 5% such duty on its manufacture, an aspect, necessarily and simultaneously, calling for reexamination. None of this was explained or justified either before the learned Judge in the High Court or before us, the former, inter alia, resorting to his own judgment in Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources, 1995 M LD 15, to extend relief. We, on our part, are constrained to conclude that this squarely was a case, not only involving inaptness and inequality in the matter of executive exaction of taxes, as distinguished from a legislative measure in that direction but also of discrimination. Economic justice, of which economic oppression is an antithesis, is now, upon the advent of Article 2A of the Constitution, an enforceable concept. Equality before and equal protection of law to all citizens, enshrined in Article 25 of the Constitution, as supplemented by due treatment according to law in Article 4, the latter extending not only to citizens but to every other person in Pakistan, accordingly now stand crowned by equality in economic and other opportunities, tampered by social, economic and political justice, as, inter alia, deducible from the Islamic concepts, emanating from the enforceability of the Objectives Resolution and the pristine dimensions, currently, standing restored to the Principles of Policy in view of the latest enunciations of this Court. Paras. 4 and 8 of the Resolution, together with Articles 2A, 4 and 25, in so far as relevant here, read:-- "Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed-- ' Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.'
8. 2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annexure are hereby made substantive part of the Constitution and shall have effect accordingly.
4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) ....................
25. (1) All citizens are equal before law and are entitled to equal protection of law.
9. (2)
10. (3)
11. The situation, thus, exhibiting lack of transparency in the process of decision-making, the power of judicial review, under Article 199 of the Constitution, does extend to see whether or not such had been arrived at by the public functionaries concerned in a manner which did not contravene the fundamental rights or the Constitutional guarantees. Additionally, while there is a power in the Legislature and other taxing authorities to classify persons or properties into categories and to subject them to different rates of taxes, there is none to target incidence of taxation in such a way that similarly placed persons are dealt with not only dissimilarly but discriminately. [See Elahi Cotton Mills Ltd. v. Federation of Pakistan, PLD 1997 SC 582]. While it remains true that a taxation measure cannot be struck down lightly and even tests of discrimination are rigorous, the rigours can be softened where the levying authority is a delegated one, coming to be exercised, not by the Legislature, but by the executive and, at that, with a degree not only of non-concern but even abandon, throwing up a case of disregard of fundamental rights and Constitutional safeguards.
12. Even so, the Court cannot assume either the legislative or the executive function. For such reason, and correctly the High Court left the company to seek exemption or regulation of the excise duty from the C.B.R./Federal Government, as also the ultimate working out of equivalence and reduction of the levy generally, in the following words, with the same appellants:-- "The petitioner deserves to be treated alike and no good ground exists nor has been advanced on behalf of the respondents to deny this relief to the petitioner. Resultantly, it is ordered that petitioner is entitled to be given corresponding reduction in the payment of Customs Duty w.e.f, the date on which customs duty on imported Kraft Paper was reduced from 65% to 50%. The customs duty paid in excess by the petitioner shall be refunded to it or adjusted towards future payment on petitioner's imports. By order, dated 13-8-1995 the proceedings regarding recovery of excise duty from the petitioner were suspended. That arrangement shall continue till 30-4-1996 and adjustments which are to be made resultant to this order shall be made against the amount due to the Federal Government/C.B.R."
13. ' In view of the foregoing, we have found no fault with the High Court order and, accordingly, dismiss this appeal but with no order as to costs. The security furnished, if any, would also consequently stand rescinded.