' Plaintiff, Hammad Lubricants, filed this suit for declaration and perpetual injunction with the following prayer:-- "(a) 'Declare that the lubricating oil manufactured by the plaintiff by using lube base oil manufactured in local refinery as stipulated in S.R.O 455(1)/96, dated 13-6-1996 is exempt from Central Excise Duty.
(b) Grant permanent injunction prohibiting the defendants jointly and/or severally through their agents/officers from compelling the plaintiff to pay any (sic) oil manufactured from base oil from local refinery as stipulated under S.R.O. 455(1)/96, or otherwise and from taking any adverse action against the plaintiff directly or indirectly in any manner whatsoever for recovery thereof including interference and hindrance in the lawful conduct of plaintiff's business by any means whatsoever or interfering with its license/bond.
(c) Any other relief which this Hon'ble Court deems just and proper in the circumstances of the case.
2. Brief facts of the case are that the plaintiff, a sole proprietorship concern, is carrying on business of lubricants and is operating a blending and reclamation plant. The plaintiff manufactures lubricating oil through blending of lube base oil and through blending lube base oil with reclaimed oil. The lubricating oil, thus manufactured, is dispatched in packs of various small sizes or in bulk through trucks. The plaintiff claims that under Notification S.R.O. No, 455(1)/96, dated 13-6-1996 the products .Manufactured by it are exempt from payment of Central. Excise Duty. Paragraph 5 of the plaint reads as under:-- Lubricating oil, i,e, oil such as is not ordinarily used for any other purpose than lubrication, which has flash point at or above 200-F by Abel's Close Test 2710.0081In packs not exceeding 10 litresTen per cent of the retail price or seven rupees and fifteen paisa per litre whichever is higher.
2710 .0082In packs exceeding 10 litresTen per cent of the retail price or seven rupees and fifteen paisa per litre whichever is higher"(5) That the relevant part of the Harmonized Customs Import Tariff provides as follows:-- ' Lubricating oil, i,e, oil such as is not ordinarily used for any other purpose than lubrication, which has flash point at or above 200F by Abel's Close Test: 2710.0081 -- In packs not exceeding 10 litres.
2710.0082 -- In packs exceeding 10 litres.
3. Paragraph 6 of the plaint, which is relevant for resolving the main and sole question, whether Central Excise Duty is leviable on the goods manufactured by the plaintiff, reads as under:- "(6) That in exercise of power conferred under section 12A of the Central Excises Act, 1944, the defendant No,1, vide S.R.O. 455(1)/96, dated 13-6-1996, inter alia, provided exemption from CED on lubricating oil (P.C.T. Heading 2710.0081 and 2710.0082) subject to certain conditions stipulated there. The relevant conditions are effective as follows:--
(i) Lubricating oil subjected to duties of excise, if manufactured from lube base oil manufactured in refineries provided that the provisions of Chapter X of the Central Excise Rules, 1944, are follow. This lubricating oil manufactured from lube base oil from the refineries is completely exempt from any payment of CED.
(ii) Lubricating oil if manufactured from reclaimed oil. The lubricating oil manufactured from reclaimed oil is exempt from CED in excess of Rupees five per litre.
4. According to the averments in the plaint, the plaintiff claims exemption from CED on the ground that lube base oil manufactured in refineries was also exempt from payment of CED., his also averred that in terms of S.R.O. No, 455(1)/96, lubricating oil which was manufactured by the plaintiff by using lube base oil from the local refinery which satisfied the other conditions stipulated in the Notification was completely exempt from CED.
5. Plaintiff has claimed exemption from payment of Central Excise Duty on the ground that the goods manufactured by the plaintiff fall under PCT Headings 2710.0081 and 2710.0082. Plaintiff, in the plaint, has quoted a part of the Harmonised Import Tariff which appears as a Schedule to the Customs Act, 1969. This has no relevance to the subject-matter of the suit as the Import Tariff is for the purpose of Customs Duty and Sales Tax.
6. The relevant S.R.O. For the purpose of resolving the .Dispute as to a charge of CED on the goods manufactured by the plaintiff is S.R.O. No, 456(1)/96, dated 13-6-1996, which provides as under:--
7. Thus, it is clear that CED is leviable on lubricating oil at the above rates. Since the plaintiff is not manufacturing lube base oil, therefore, he cannot claim any exemption which is available to manufacturers of lube base oil. The provisions of the Customs Act and the S.R.O. Issued in exercise of powers under the provisions of that Act cannot be stretched to override the clear provisions of the Central Excise Duty levied under the provisions of the Central Excise and Salts Act, 1944.
8. This suit was presented on 15-8-2001. A perusal of the case diary shows that the plaintiff is not at all interested in pursuing his case. Even he did not properly instruct his counsel for which the counsel filed an application for discharge from the case which was granted. The last time the counsel for the plaintiff appeared in this case was on 26-11-2001. Since then, nobody has appeared on behalf of the plaintiff on any date. Raja Muhammad Iqbal, counsel for the defendant is, however, attending the Court regularly. However, with the assistance of the counsel for the defendants, perusal of the record and the contention raised in the plaint do not make out any case in favour of the plaintiff.
9. In view of the above, this suit is misconceived and is accordingly dismissed.