IFTIKHAR MUHAMMAD CHAUDHRY, J.- Petitioner has sought leave to appeal against judgment dated 6th October, 2000 passed by Lahore High Court, Lahore whereby Writ Petition No. 4880/1986 has been dismissed.
2. Precisely stating facts of the case are that petitioner company faced proceedings before Collector in pursuance of show-cause notice for allegedly violating Rule 8(2) of the Excise Duty on Production Capacity (Cotton Yarn) Rules, 1975 (hereinafter referred to as the "Rules") on stated allegation that petitioner's Mill sought clearance on AR-3 of a consignment of 872 "Boras" containing 87100 Lbs. Of Hard Wastes for shipment to the warehouse of M/s. Paul Corporation Karachi but these goods were unloaded in Kissan Cotton Factory, Faisalabad. The staff of DII (Customs and Excise) Faisalabad seized the consignment. The Deputy Collector Central Excise and Land Customs, Lahore absolved the petitioner from any responsibility for wrong shipment. However, Collector Central Excise and Land Customs, Lahore reopened the case under section 35-A of the Central Excise and Salt Act, 1944 and held the petitioner guilty for contravention of the Rules and imposed penalty equal to twice the amount of duty involved.
Against the order passed by Collector petitioner filed appeal before the Central Board of Revenue, which was dismissed on 2nd February, 1986. Against this order petitioner preferred revision petition before the Government of Pakistan which too was dismissed on 8th May, 1986. Against the said order Writ Petition was instituted by the petitioner before Lahore High Court, which was dismissed.
3. It may be noted that learned High Court declined to issue writ because matter involved disputed question of facts which are not to be resolved in Constitutional jurisdiction.
4. Learned counsel contended that petitioner had delivered 872 bags (Boars/ of Hard Waste to M/s. Paul Corporation Karachi owners of the licensed warehouse in pursuance of application on Form AR-3. Concerned Deputy Superintendent Central Excise duly issued certificate in this behalf on account of which Superintendent Central Excise Lyallpur (Faisalabad) granted permission to M/s. Paul Corporation Karachi for removing bags of Hard Waste. Delivery' of which accordingly took place under the supervision of employees of Excise Department who testified this fact by issuing the certificate. He further stated that ultimately the consignment reached the ware house of licence i.e. M/s. Paul Corporation, Karachi from where it was exported vide AR-4 No. 339 dated 14.11.1974. He further stated that if the licence of the warehouse i.e. M/s. Paul Corporation Karachi had detained the Hard Waste in Faisalabad in some unauthorised ware house without notice and permission of the petitioner no liability can be fixed upon it nor he can be held responsible for violating Rule 8(2) of the Rules. He further stated that in somewhat identical case the Lahore High Court, Lahore in the case of Crescent Textile Mills Ltd., Sargodha Road, Faisalabad V. Deputy Collector of Central Excise and land Customs, Lahore (PTCL 1985 (C.L.) 248) has held that manufacturer cannot be held responsible for non-removal of the yard to a licenced warehouse after completing its delivery in accordance with the Rules.
5. On the other hand learned counsel for the Caveator stated that petitioner is barred by time for one day as such it may be dismissed on this score alone but after calculating the time spent in obtaining copies etc. He failed to persuade us to entertain this objection. On merits learned counsel stated that Rule 8(2) of the Rules being unambiguous in its nature cast an obligation upon the manufacturer to ensure that goods reaches in licenced ware house safely and if in transit some change is made the manufacturer would be debarred to claim rebate because it would be deemed that yarn dispatched from the Mills of the manufacturer has not been exported inasmuch as for such violation manufacturer can also be penalized if it had taken deductions on account of such false export. He further stated that the forums below i.e. Collector Central Excise and Land Customs, Lahore etc. Have established through evidence that the goods (Hard Waste) which was got cleared by petitioner on A.R. 3 was never sent to Karachi and it was disposed of in an unlawful manner and to made up the deficiency some other goods i.e. Hard Waste stocked in some other ware house at Karachi was allegedly exported.
6. We have perused Rule 8(2) of the Rules carefully according to which it is the responsibility of the manufacturer to ensure that after removal of the yarn from the Mills it is duly received in a licenced warehouse. Therefore, it can give rise to a question of public importance that how a manufacturer can be made responsible for compliance of Rule 8(2) of the Rules because once a delivery had been given by it after following the procedure i.e. Filing of application on form AR-3 and getting a certificate from the Superintendent Central Excise that the goods were delivered to a warehouse licence who in turn instead of transporting the same in the licenced warehouse removed the same to somewhere else and the manufacturer in goods faith claimed deduction under a bona fide impression that goods have been exported by the licence of the warehouse. Thus to examine this question leave to appeal is granted.