' SARDAR MUHAMMAD RAZA KHAN, J.---M/s. Nadeem Electronics (Pvt.) Ltd. Hazara Trunk Road Haripur was installed in the year 1991 for the manufacture/assemblage of colour television. Various spare/assembly parts were, from time to time, imported by the Company against which sale tax was leviable in accordance with law.
2. The Company did not pay sale tax on the import of various articles on the ground that it was exempted under Notification No, SRO 529(1)/88 issued by the Government of Pakistan Ministry of Finance and Economic Affairs (Sales Tax Wing) on 26-6-1988. Specific reference of such Notification was given in the relevant column on each Letter of Credit. The total amount of sale tax, thus, saved amounted approximately to Rs,5,11,000. Subsequently, it came to the notice of the Department concerned that the exemption was wrongly claimed and hence the aforesaid amount was recovered from Saif Nadeem Electronics. The Company has filed the instant writ petition for the refund of the above amount claiming that the recovery thereof was time-barred under section 6 of the Sales Tax Act, 1990 read with section 32 of the Customs Act, 1969.
3. As the Chairman of the Company Mr. Ashfaq Ahmed was not represented by a counsel, we gave him maximum possible opportunity of hearing. Before that we revert to the legal aspect of the case, it would be convenient to know as to what S.R.O. No, 529(1)/88 really aims at. A perusal thereof as Annexure M-1 at page 145 would reveal that it was issued by the Department concerned of the Federal Government in exercise of its powers conferred by subsections (1) and (2) of section 7 of the Sales Tax Act. The Government was to direct that "all goods produced or manufactured by such industries which are set up between the 1st July, 1988 and the 30th June 1991", in the Province of Balochistan except in Hab Tehsil, the North West Frontier Province, the F.A.T.A., the Northern Areas and Azad Kashmir, "shall be exempt from the tax payable under the said Act".
4. A plain, cursory and single perusal of the above Notification would undoubtedly reveal that the sale tax exemption therein is available only against the production and manufacture of the goods and not against the import thereof. The law as well as the justice demands that the petitioner company should have paid the sale tax on the imported goods. The law and the justice demanded that if not paid, it should have been recovered from the Company. The Government through the department concerned has now recovered such tax and by such recovery has not resorted to any injustice. Any direction issued in this behalf by this Court regarding the refund of the recovered amount would amount to issuing a writ in aid of injustice and not in aid of justice. The issuance of such a direction under Article 199 of the Constitution requires always to be avoided. We feel that in the instant case the refund of validly recovered sale tax, if directed by this Court, would amount to giving directions in aid of injustice and hence we do not feel favourably inclined.
5. It is a case of refund of a large sum of money. The recovery thereof involves the question of limitation which, in the instant case, is a mixed question of law and facts and hence the better course for the petitioner Company was to have filed a civil suit. We, reiterated this aspect of the case to the Chairman of the petitioner Company during arguments and asked him if he preferred to file a civil suit or to continue with the present writ petition. We also apprised him of the fact that if he chose to file a civil suit, then any remarks likely to be made by us in the writ petition, might get avoided. Mr. Ashfaq Ahmed was clear in his mind and wanted a decision in the present writ petition, by avoiding to file a civil suit. We therefore, hold, as aforesaid that this was a case where the petitioner Company should have filed a civil suit and we should not give any remedy under Article 199 of the Constitution.
6. The wording of SRO 529(1)/88 is so clear, simple and unambiguous that one cannot have two interpretation thereof or two opinions there about even for a moment. Despite such state of affairs the present Company chaired by a very educated man before us had chosen to mention the aforesaid Notification in the relevant column of Letter of Credit for the specific purpose of claiming the exemption from payment of sale tax. This at the face of it appears to be a mala fide and the exemption, thus, obtained and the money thus, saved was an ill-gotten benefit. We are of the considered view that this Court should avoid stepping in for the refund of the recovered amount which basically was an ill-gotten money. This aspect of the case also goes against the petitioner.
7. Coming to the question of law agitated by the petitioner. He claims that the time and manner of payment of a sale tax is provided by section 6 of the Sales Tax Act, in that, the tax on the goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a Duty of Customs payable under the Customs Act, 1969. He further added that the sale tax in dispute essentially amounted to a tax not levied by reason of inadvertence, error or misconstruction and, thus, under section 32(3) of the Customs Act, 1969 it could not be recovered at all, if not recovered against a notice issued within a period of 6 months.
8. Qazi Muhammad Ghazanfar learned counsel for the department claimed that section 32 of the Customs Act was not applicable and that the department had made a recovery within the prescribed period provided by section 36 of the Sales Tax Act, 1990, itself. This aspect of the case was discussed at length and was seriously attended to. After having gone through sections 6 and 36 of the Sales Tax Act, 1990 and section 32 of the Customs Act, 1969 we are of the considered view that section 6 of the Sales Tax Act provides only for the time and manner of recovery, in the normal course of conduct. Through such section the time and manner of recovery has been made similar to that of the recovery of Customs Duty. There is a detailed procedure of the recovery of Customs Duty which also requires to be recovered within a specified period. Instead of repeating that lengthy procedure and office routines, it was simply provided in section 6 of the Sales Tax Act that the time and manner shall be similar to that of recovery made under the Customs Act.
9. The law was not unmindful of the extraordinary circumstances under which the Customs Duty or the sale tax might not be levied at all, might be short-levied, erroneously refunded by reason of any untrue statement, error, inadvertence, misconstruction, misrepresentation, collusion or a deliberate act. If such circumstances aforesaid arise in connection with the recovery of Customs Duty, the same shall be recovered according to the procedure laid down in section 32 of the Customs Act, 1969 but if such circumstances or certain specific circumstances have resulted into the non- levying, short-levying or the erroneous refunding of the sales tax, the recovery shall be resorted to in accordance with the procedure laid down in section 36 of the Sales Tax Act, 1990. A perusal of section 32 of the Customs Act and section 36 of the Sales Tax Act would clearly indicate that there are few circumstances which are different in the two sections.
10. Thus, we are of the view that the recovery of sale tax not being normal but under abnormal and specific circumstances given in section 36 of the Act shall be recovered under that section alone and not under section 6 of the Sales Tax Act, 1990 or under section 32 of the Customs Act, 1969. If the time and manner of recoveries under section 6 of the Sales Tax Act could have been deemed to have been fully covered by section 32 of the Customs Act, 1969, there was no need at all to have enacted section 36 of the Sales Tax Act. If the argument of the petitioner is accepted to be correct, the enactment of section 36 of the Sales Tax Act would appear to be a complete superfluity. Rather, if we place reliance on section 32 of the Customs Act, 1969, the petitioner would be lodged in trouble for making wrong statement in the Letter of Credit knowing or having reasons to believe that such statement was false.
11. Consequently we are of the view that the special circumstances of non-levying, short-levying or erroneous refunding mentioned in section 32 of the Customs Act are different from circumstances mentioned in section 36 of the Sales Tax Act. That if such specific circumstances arise concerning the recovery of Customs Duty, such Custom Duties shall be recovered under section 32 of the Customs Act, 1969. But if such circumstances arise regarding the recovery of sale tax, the same shall be recovered under section 36 of the Sales Tax Act, 1990. In the case in hand, the period provided by section 36 of the Sales Tax Act through latest amendment is a period of 5 years. The disputed recovery was made within such period and hence the petitioner has no merit for the refund of an amount validly recovered by the petitioner. The writ petition is hereby dismissed.