1. ' I propose to dispose of these suits by this common judgment as the facts thereof are similar and so also the impugned Notifications which raise common issues of law only.
2. ' All the above suits inter alia impugn section 4(5)(a) of the Finance Act, 1994 whereby levy of Central Excise duty on goods imported into Pakistan was introduced by amending the charging section of the Central Excise and Salt Act, 1944. So also the Notification bearing SRO No,571 (i) of 1998, dated 12-6-1998 is also impugned on a number of counts as pursuant thereto the Plaintiffs are being required to pay Excise Duty on their imported products at the import stage, which, inter alia, amounts to double jeopardy as the Plaintiffs pay central excise duty also at the output stage viz: when their goods are manufactured. Consequently, the imposition of central excise duty on the Plaintiffs' goods at the import stage and output/manufactured stage is discriminatory in nature as the commercial importers of the goods in question viz lubricating oil only pay excise duty at the import stage. It is further averred in the plaints that in any event, the impugned SROs are only applicable to the import bf lubricating oils in packs and not as in the present case when in the first instance what is being imported is base oil in loose condition.
3. ' The brief facts of the matter (which are not disputed) are that the Plaintiffs in all the suits are importers of base oil in bulk which is brought to the Port at Karachi in oil tankers and discharged directly into the oil tanks of the Plaintiffs' located near the Port. This base oil is, thereafter, blended in order to manufacture finished lubricants by the Plaintiffs for sale/distribution in the open market.
4. ' On 13-6-1996 SRO 454 (1) (96) was issued under section 12-A of the Excise Act, 1944 which imposed Central Excise Duty at the import stage on lubricating oil in packs not exceeding 10 liters falling under PCT 2710.008 at the rate of Rs,5 per liter. Subsequently an amendment was issued to the said SRO vide SRO No,571(i) of 1998, dated 12-6-1998 whereby packs exceeding 10 liters falling under the same category were also made chargeable to excise duty at the rate of Rs,5 per liter. However, vide SRO No,455(i) of 1996, dated 13-6-1996 the manufacturer could have claimed adjustment of Customs duty paid at import stage from the central excise duty payable on the final for manufactured/blended product. Suddenly this facility was withdrawn by SRO No,572 (1) of 1998, dated 12-6-1998.
5. ' It has been further submitted in the Plaints that relying upon the impugned Notification No, SRO 571(1) of 1998, dated 12-6-1998 the Defendant No,6 viz: Collector of Central Excise, as well as the other Defendants have sought the recovery of central excise duty on the base oil imported by the Plaintiffs without which they had refused to clear the said oil and in response to which the Plaintiffs have paid said duty under protest. Thereafter, the Plaintiffs have been writing to the Defendants regarding the unwarranted interpretation of the impugned SRO by the Defendants whereby central excise duty is being demanded and paid by the Plaintiffs on the loose oil imported by them.
6. However, despite such letters and subsequent meetings the Defendants have refused to change their views and hence the suit.
7. ' In the written statement filed on behalf of the Defendant No,3 in S.No,1500 of 1998 it has been contended that the impugned SRO 571(1) of 1998, dated 12-6-1998 was lawfully issued and the central excise duty as regards the Plaintiffs imported oil is in accordance with the said SRO since any oil imported in excess of 10 liter packs was liable to central excise duty in terms of the said SRO.
8. In this regard it is the contention of Defendant No,3 that since the tanks of the ships in which the loose oil was imported exceeded 10 liters, therefore, the excise duty has correctly been imposed. In the written statement filed by Defendant No,6 preliminary objections have been taken as to the maintainability of the suit since there is a bar under section 40 of the Central Excise Act, 1944, secondly that the Plaintiffs have not exhausted other adequate alternative remedies before approaching this Court and finally that as the Plaintiffs were liable to pay excise duty under SRO 454(i) of 1996, dated 13-6-1996 and have been doing so since the imposition of the said SRO the filing of the suit in the year 1998 is again barred by acquiescence and estoppel. On merits it has been averred in the said written statement that no Constitutional provisions have been violated as regards the amendment made in section 3 of the Central Excise Act, vide section 4(5)(a) of the Finance Act, 1994 whereby excise duty was levied at the import stage. As regards the 'Plaintiffs' contention that the excise duty was only leviable on packs of oil exceeding 10 liters, it has been maintained in the written statement that the ships tanks in which the oil was imported exceeded 10 liters, therefore, excise duty was correctly imposed by the impugned SRO. Similarly it is denied that the impugned SRO is discriminatory in nature as central excise duty can be levied at various stages including the import stage as per the provisions of the Excise Act. The written statements in S.No,1500 of 1998 was adopted in all the other suits.
9. ' On the pleadings of the parties the following issues were adopted by consent.
(1) Whether the suit is maintainable?
(2) Whether the goods imported by the Plaintiff are dutiable in terms of SRO No,571(1) of 1998, dated 12-6-1998?
(3) Whether section 4(5)(a) of the Finance Act, 1994 is violative of the Plaintiffs' Constitutional rights?
(4) What should the decree be?
10. ' By consent of the learned counsel no evidence was led as only an issue of law was involved. Both the learned counsel have also admitted each others documents filed along with the plaints and written statements respectively which have accordingly been exhibited. Learned counsel for the plaintiffs did not press issue No,3 during arguments and consequently only confined themselves to issues Nos.1, 2 and 4.
11. ' As regards issues Nos.1 and 2, learned counsel for the Plaintiffs have stressed the following points.
(i) That the impugned SRO 571(1) of 1998, dated 12-6-1998 (Exh.5/2) only applies to lubricants imported in packs which by no stretch of imagination can be made applicable to the loose oil imported in bulk by the Plaintiffs, hence the impugned SRO is not applicable in the Plaintiffs' case.
12. So also the impugned SRO only applies to lubricating oil which by definition is a finished product, whereas the base oil imported by the Plaintiffs is the raw material which is finally blended into lubricating oil and hence again the provisions of the impugned SRO are not applicable to such base oil. Consequently it is submitted that a wrong interpretation of the law is by itself a violation of the law and hence the bar contained in section 40 of the Excise Act would not apply in which event the Suits are maintainable and this Court would have jurisdiction in the matter. .(ii) The Plaintiffs pay central excise duty on the output stage at 10% and since no adjustment is granted of the central excise duty paid at the import stage this amounts to double jeopardy and double taxation militating against Articles 2-A, 3, 4, 13 and 77 of the Constitution.
(iii) The levy of central excise duty at import stage along with other levies is expropriatory and confiscatory in nature as the total taxes and duties nearly add up to 127.65%.
(iv) That as prior to the imposition of SRO 571(1) of 1998, dated 12-6-1998 no central excise duty on the import stage was imposed on the Plaintiffs loose oil, therefore, they had a vested right and a right in legitimate expectation not to be so charged. Consequently based on the principle of promissory estoppel the Defendants cannot charge the demanded excise duty.
(v) That the application of the impugned SRO to the Plaintiffs' case is discriminatory in nature as it was intended to apply to those importers who import the finished product viz lubricating oil and sold it in the open market as they never paid any excise duty at the output stage. However, in the Plaintiffs' case they are being made to pay excise duty at the import stage as well as at the output stage, thus, placing the Plaintiffs in a such more dis-favourable market condition which violates the Plaintiffs rights as per Article 24 of the Constitution.
13. ' On the other hand Learned State counsel has supported the contents of the written statements and contended that this court does not have any jurisdiction to certain these suits due to the bar contained in section 40 of the Excise Act and further that the Act provides a complete machinery for redress of the Plaintiffs' grievance which has not been exhausted. On merits again Learned State Counsel has argued that as the Ship's Tanks in which the oil was imported were in excess of ten liters the Excise duty has been correctly charged as per the impugned SRO.
14. ' I have heard the learned counsel and my conclusions are as follows:--- ' It would be seen that prior to the date of the impugned SRO viz: 12-6-1998 excise duty was being levied on packs of lubricating oil of up to five litres and no duty was being charged on the Plaintiffs' base oil imported in bulk in tankers. It appears in the first instance that such excise duty was being levied in the case of those importers who imported manufactured products viz lubricating oil in packs up to five liters as these importers sold said packs in the open market as a commercial product and did not process or refine it further for the purpose of such sale. However upon notification of the impugned SRO imposing excise duty in packs exceeding ten litres of such lubricating oil the excise department have started imposing duty on the base oil imported by the Plaintiffs firstly treating it to be lubricating oil and secondly considering it to be imported in a pack in excess of ten litres. In my view on a plain reading of the impugned SRO as well as SRO 454 (i) of 1996, dated 13th June, 1996 (Exh.5/3) it cannot be said that the tanks in which the Plaintiffs' oil is imported is a pack for the obvious reason that the word "pack" cannot be equated with the word "tank". The dictionary meaning of the word "pack" as appeared in Chambers 20th Century Dictionary is a bundle, a collection or store, a number of animals huddling together etc. Similarly the word "pack" is also used as a verb to mean the act of putting together items for the purpose of carriage etc. So also in Blacks Law Dictionary the word "pack" has been defined as a verb, however, the word package has been defined to mean a bundle put up for transportation or commercial handling from delivery from hand to hand. Consequently in my view under no circumstances can the word "pack" correspond to the word "tank" of the vessel in which the oil of the Plaintiffs was imported. Secondly it may also be seen that the term "lubricating oil" is distinct from "base oil" and in fact has been used in contra distinction as such in the impugned SRO as well as SRO No,455(i) of 1996, dated 13-6-1996 (Exh.5/3) where it is stipulated against lubricating oil that said lubricating oil is to be manufactured from base oil imported by a blender. It would, thus, be seen that lubricating oil is the end product which is manufactured through a process of blending base oil with other materials. Consequently again in my view it cannot be said that the lubricating oil which is amenable to Excise duty in terms of the impugned SRO corresponds to the base oil imported by the Plaintiffs.
15. ' For all the foregoing reasons I am of the opinion that the base oil imported by the Plaintiffs cannot be charged with Excise duty in terms of the impugned SRO.
16. ' The above observation then would come rise to the consideration whether the suits are barred under section 40 of the Excise Act.
17. ' As regards the maintainability of the suit in view of the bar contained in section 40 of the Central Excise Act, 1944, it would be seen that the case of Abbasia Cooperative Bank and another v. Hafiz Muhammad Ghous and five others, (PLD 1997 SC 3) summarizes the law regarding ouster of the jurisdiction of Civil Courts. In the said case the Hon'ble Supreme Court has laid down that, "it is a well-settled principle of interpretation that the provisions contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well- settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it followed that where the authority or the tribunal act in violation of the provisions of the statute which conferred jurisdiction on if or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the -statute barring the jurisdiction of the Civil Court."
18. Consequently, it remains to be examined whether the impugned order passed by Defendant No,2 suffers from any such defect which would, as per the formulation of the Hon'ble Supreme Court, allow the Plaintiffs to approach this Court for relief despite the bar contained in section 40 of the Excise Act.
19. ' In this regard I have already held that a pack is not commensurate with the vessel's tanks in which the oil of the Plaintiff was imported. So also I have come to the conclusion that the term "lubricating oil" is distinct from the terms "base oil". Consequently in these circumstances the base oil imported by the Plaintiff cannot be charged with Excise duty in terms of the impugned SRO viz No,SRO-571(i) of 1998, dated 12th June, 1998. To do otherwise would be to mis-interpret the law. In my opinion a mis-interpretation of the law is a violation of the law. Furthermore it would be seen that as laid down by the Hon'ble Supreme Court in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447) a Tribunal has been given the jurisdiction to decide any particular matter in accordance with the law and when it does not do so it goes outside its jurisdiction. In my view, therefore, since the Authorities in question have violated the law, to that extent they have no jurisdiction in the matter. Consequently in view of all the foregoing facts I hold that this Court has jurisdiction in the matter. Accordingly issue No,1 is answered in the positive and Issue No,2 in the negative.
20. ' No arguments were addressed at the bar regarding any other issues including the issue of double jeopardy and double taxation as well as on the principle of promissory estoppel and discrimination. Hence no findings are returned on these aspects of the matter. Similarly the Defendants have been unable to establish that the Plaintiffs have been paying excise duty previously in terms of SRO 454(1) of 1996, dated 13-6-1996 and as such are stopped on the principles of acquiescence and estoppel from challenging such payment now as no evidence was forthcoming in this regard. Even otherwise in my opinion such principles would not apply in the facts of the present matter as it appears that previously the Plaintiffs were not paying excise duty on their base oil at the import stage vide SRO 455(1) of 1996, dated 13-6-1996 (Exh.5/5). However vide SRO 512(1) of 1998, dated 12-6-1998 (Exh.5/4) this facility was withdrawn and duty imposed on oil imported in packages exceeding ten litres vide the impugned notice. Thus, it appears that under the previous dispensation viz in 1996 excise duty was only chargeable on lubricating oil imported in packages not exceeding five liters and the Plaintiffs' base oil exempted from such duty. In 1998 such exemption was withdrawn and excise duty imposed on packages in excess of ten liters in order to bring the Plaintiffs' oil imported in bulk into the excise net. This exercise as, I have already held is not justified in the circumstances of the cases.
21. ' As regards issue No,4 viz, "what should the decree be" in my opinion the Plaintiffs are only entitled to a declaration to the effect that the impugned SRO is not applicable to the Plaintiffs base oil which is imported in sea going vessels and that the Defendants be permanently restrained from charging excise duty on such base oil at the import stage so also proceedings before the concerned authorities are permanently stayed. So also the Plaintiffs would be entitled to a refund of central excise duty so far paid by them under the impugned SRO Order accordingly. All the Suits are decreed as aforesaid.