' SARDAR MUHAMMAD RAZA KHAN, J . --The Federal Government vide Notification bearing SRO 517(1)/89, dated 3rd June, 1989 directed that such raw materials and components, imported for the exclusive manufacture of goods by recognized Industrial Units located in the approved Industrial Estate of Gadoon Amazai in the Province of North-West Frontier shall be exempted from whole of the customs duties and sales tax etc. Leviable thereon. This exemption was subsequently withdrawn through S.R.O.419(1)/91, dated 9th May, 1991.
2. Numerous Industries located in Gadoon Amazai Industrial Estate challenged such withdrawal but the same, with reference to section 31-A of the Customs Act, was declared valid. Various writ petitions were pending when the Federal Government realised that many Industrial Units had suffered financial loss as a result of the aforesaid withdrawal of concession and hence a concession was offered to them provided they withdrew from litigation. Resultantly, a meeting of the E.C.C. Of the Cabinet was held on 6-8-1991 and subsequently on 31-10-1991, wherein a package of 25% compensation was announced and conveyed to Mr. S.M. Zafar counsel for the Federal Government through a letter, dated 28th of June, 1992 based on decision of the E.C.C. Of the Cabinet. This was a package consisting of one-time relief of 25% exemption on the total duty value of raw material imported or importable for one year.
3. Pursuant to such offer, the writ petitions were withdrawn and the Industrial Units applied for such concession. To some Industries the concession was granted but it varied from capacity to capacity and the quantum of concession in terms of money remained different. The present petitioners mentioned in the title were not satisfied with the manner in which the 25% was calculated. Some of them claimed that the aforesaid 25% of exemption was not calculated properly because machineries imported by them in order to ensure better production were not included in their production capacity. Some of them are aggrieved that while calculating their production capacity, assessm ent was based on single shift production whereas their's was three-shift production. Some were aggrieved of the total number of days calculated in a year were less than 365 and it was claimed that the full production capacity, if counted in terms of year, should have covered 365 days of the years, some claimed the same to be 350 days of the year. The net result of the claims in the above writ petitions was that 25% exemption ought to have been granted against the full annual production capacity, dubbed by some of them as 100% production capacity. As the ultimate claim put in by the writ petitioners is one and the same, we propose to decide all the petitions through this single judgment.
4. Comments were received in majority of writ petitions but not in few others. As the question involved is one and the same and as the comments also were similar in all cases in which it were filed, we will consider such comments in all the cases in hand.
5. The point to be noted qua the grant of 25% compensation is that it is neither granted through the enforcement of a rule nor the issuance of any Notification. It was an offer made by the Federal Government through a letter dated 28-6-1992 addressed to its own counsel Mr. S.M. Zafar during the pendency of previous litigation concerning withdrawal of S.R.O. No,517. Such letter specifically refers to decision of the E.C.C. Of the Cabinet regarding payment of 25% compensation and hence such decision of the E.C.C. Together with letter dated 28-6-1992 is the basic document deciding the fate of writ petitions in hand; rather, the decision of the E.C.C. Is the primary document on which the letter dated 28-6-1992 is based.
6. Minutes of the meeting and decision of the E.C.C. Were never filed by any of the writ petitioner's alongwith their writ petitions. Instead, those are filed by the respondents alongwith their comments.
While passing, we may remark that numerous facts have been suppressed in the writ petitions for no good reasons. A perusal of the minutes of the meeting held on 31-10-1991 would reveal that all decisions were taken on that date and to the effect that;
(1) One-time relief of 25% would be provided to existing Units in the Gadoon Amazai Industrial Estate.
(2) The percentage aforesaid shall be of the total duty value of raw material imported or importable for one year.
(3) The actual imports in the period immediately preceding the withdrawal of S.R.O. No,517 (9-5- 1990 to 9-5-1991) according to laid down procedure, would be considered as the raw material imported.
(4) The importable capacity for the said year and under the same procedure would be calculated on the basis of other similar Industries existing in the period concerned.
(5) Only those Industries would be considered for purposes of comparison which have opened letters of credit for import of machinery, signed contracts for the purchase of local machinery and whose construction of building work had started as per approved plans by 9th of May, 1991 (i.e, the date of withdrawal of S.R.O. No,517).
7. Prior to the conveyance dated 28-6-1992 of the concession in question, a meeting was held also on 26-2-1992 to examine the claims. The Committee further decided that;
(i) The relief of 25% would be provided to those Units alone, the productive capacity whereof is given in pro forma S' approved by the Central Board of Revenue.
(ii) Where the Units were not in production, the relief of 25% would be based on the capacity assessed by Sarhad Development Authority, subject to verification by Central Board of Revenue.
(iii) The above capacity assessed by Sarhad Development Authority could not exceed the weighted capacity assessed on Form 's' of similar Units.
(iv) The last date for the submission of such claims was 31-3-1991, subsequently extended to 15-5- 1992, and may be further extended but not intimated to the Court."
8. From the perusal of the above decisions taken by the E.C.C., we have come to certain definite conclusions and also some other conclusions connected therewith or ancillary thereof which required the recording of evidence. One thing is absolutely clear that the concession is granted for the year 9-5-1990 to 9-5-1991. The writ petitions before us have left this point in confusion as to for what period they claimed the concession at all. The suppression of this material aspect of the case is rather mala fide on part of the petitioners and they attempted to gain advantage for any year that falls under target.
9. There is a fool-proof method of assessing such capacity and for that purpose the Industrial Units were bound to put applications on or before 31-31992 extended to 15-5-1992. The same Committee decided that all claims shall be processed and finalised on top priority basis and the Industrial Units shall also be afforded personal hearing, if desired. If seen in the light of this offer and immediate decision one way or the other after 15-5-1992, the present writ petitions brought almost two years thereafter i.e, in the year 1994 suffered from the defect of laches; what to talk of the writ petitions in hand filed in the years, 1995, 1996 and 1997, the latter being certainly hit by the principle of laches.
10. The assessed capacity of each unit calculated for that particular year preceding the withdrawal of S.R.O. No,517 was bound to be given in Form 's' available with Central Board of Revenue. The assessable capacity (importable capacity) of the units not in production was also to be calculated in the light of particulars given in Form 'S' of the similar units already working within or without Gadoon Amazai Area. We are constrained to observe that the petitioners have not filed any Form 'S' concerning their units or concerning similar other Units; as the case may be.
11. What is the production capacity of a unit in a given period of time, (particularly one in hand), is an absolute question of fact and unless admitted, it requires the holding of factual enquiry in order to arrive at a definite conclusion. We are mindful of the principle that a question of fact can be gone into by a High Court exercising jurisdiction under Article 199 of the Constitution and there is no bar in deciding a question of fact but it can happen only when such question is either admitted or conclusively proved through undeniable documentary evidence on record. In the circumstances of the present writ petitions, the assessed capacity of the units is disputed. That all the similar units for the purposes of assessing importable capacity date non-existing on record and is again disputed.
This serious question of fact requires that holding of factual enquiry which exercise cannot be resorted to while exercising this special jurisdiction. That is why the Committee had demanded the filing of applications from each unit individually so that each case is decided factually on its own merit so that no fake claims are furnished.
12. What concludes from the preceding paragraph is that all questions of factual disputes regarding annual production capacity, regarding the installation or import of new machinery, regarding the commencement or completion of building construction etc;, during one year immediately preceding the withdrawal of S.R.O. No, 517 (9-5-1991), were restricted to be decided solely by the Committee concerned to which the applications were to be made on or before 31-3- 1992 or the extended date 15-5-1992. Such Committee was better facilitated to look into all questions of dispute between the parties and was also better facilitated to pre-empt possibility of acceptance of fake claims and to accept only genuine claims where investors had made confirmed commitments. Instead of properly presenting their case and or to avoid facing such Committee, the petitioners have come up with writ petitions.
13. In cases where the units were not in production, the relief of 25% was to be based on the capacity assessed by Sarhad Development Authority subject to verification by Central Board of Revenue and subject to not exceeding the weighted capacity assessed on Form 'S' of similar other units. As mentioned earlier, the petitioners have avoided filing Form 'S'. Some of the petitioners were assessed by Sarhad Development Authority but some of them were not, whereas all such assessm ent done by Sarhad Development Authority were never confirmed by the Central Board of Revenue. Such assessm ents cannot be derived any premium from. In W.P. No, 962 of 1995 additional machinery was claimed to be installed. In Writ Petition No, 716 of 1994 two converters and allied machinery was claimed to be imported but not considered. In Writ Petitions No,638 of 1996 and 650 of 1996, it was claimed that they had imported craft paper for the improvement of production but such import was never considered. All these questions were to be considered with strict reference to the specific year preceding the withdrawal of S.R.O. No, 517 and hence we are not better apprised if it was so done or not. What is the declared or installed capacity of a unit, if disputed like cases in hand, happens to be a question of fact asking for evidence to be recorded.
14. The exemption claimed of 25% presupposes the payment of customs duties and taxes etc. To the extent of 75%. It is not disclosed in any of the writ petitions in hand whether such amount of 75% was at all paid. Mr. Mursaleen Khan learned counsel for the Federal Government and Mr. K.G. Saber, learned counsel for the Customs department claimed that the petitioners have already availed the concession with reference to the period involved but have not alleged or proved the payment of the remaining 75% of duties and taxes. The petitioners seem to have not come to the Court with clean hands.
15. Mr. Mursaleen Khan while referring to para. 3 (iv) of the decision of the E.C.C. Argued that the power to revise the relief was provided in the package, to be done by the Committee concerned and hence the petitioners should have resorted to such Committee and should also, in view of the laid down conditions, not have resorted to litigation; meaning thereby, that the package of concession was given subject to the condition of not resorting to litigation. While disagreeing with the latter condition being against the vested right of a person, we agree with the former part of argument . We also agree with both the learned counsel that the assessment was open to objection on or before the time already provided by the Committee and subsequently extended upto 15-5-1992.
16. In cases of Industries not in production at the relevant time the annual assessed capacity was to be considered in terms of a comparative study of the existing Industries who had opened letter of credit or signed contract for the purchase of locally available machinery and who had started construction of the building work as per approved plans by 9-5-1991. We are not at all factually aware of the other Industries with which the petitioners were to be compared with strict reference to their opening of letters of credit, signing of contracts and commencement or completion of building construction. These are material questions of fact which we are at loss to determine.
17. In M/s. Bisvil Spinners Limited v. Superintendent Central, Excise and Land Customs (PLD 1988 SC 370), the Hon'ble Supreme Court has given principles of interpretation concerning taxing Statutes and exemptions allowable in fiscal matters. It was held that as a general rule grants of exemptions were to be given a rigid interpretation, against the tax payer and in favour of the taxing power.
Once again in M/s. Army Welfare Sugar Mills v. Federation of Pakistan (1992 SCM R 1652) it was laid down, in principle, that grant of exemption is discretionary matter and if the grant of exemption was subject to the existence of certain conditions, the fulfilment of such conditions was necessary before the claim of such exemption.
18. As discussed in detail, we believe, that the conditions laid down by the Federal Government in their meeting of the E.C.C. Before or while claiming exemption of 25%, have not been fulfilled by the present petitioners. The writ petitions are hereby dismissed.