' MUNIR A. SHEIKH, J.--- By this common judgment, we propose to decide all the three titled petitions involving identical questions of law and facts.
2. The petitioners in all these petitions challenged the demand raised by the Federal Government as to payment of excise duty on the services rendered by the petitioners-clubs through Constitutional petitions before the Lahore High Court which have been dismissed through the impugned judgment dated 15-12-1998 against which leave is sought.
3. The facts of the cases are that the Federal Government issued notices to the petitioners/clubs requiring them to obtain licence prescribed under the law for running clubs and also pay the excise duty on the services rendered by them with effect from 1996. Learned counsel for the petitioners submitted that by virtue of Notification S.R.O. No,546(1)/94 dated 9-6-1994, the payment of excise duty on the services rendered by the clubs had been exempted, therefore, the demand raised by the Federal Government was not valid. In order to appreciate the arguments, it would be necessary to examine the relevant provisions of the Central Excises Act, 1944 read with Schedule and different notifications issued under section 12-A of the said Act exempting payment of excise duty on the services rendered by the clubs as a whole or partly mentioned in the said notifications. Section 3 of the Act provides that central excise duty shall be levied and collected on all excisable services provided or rendered in Pakistan as and at the rates set forth in the First Schedule.
3. In section 2(10) of the Act, club has been defined as under:-- "(10) 'club' means an establishment, organization or place, other than a hotel or restaurant, the membership of which is restricted to a particular class of people of which is run on the basis of mutuality and provides outdoor games, food or drinks, whether or not it has any arrangement for boarding and lodging."
4. Item No,9801.4000 of the Schedule reads as under:-- "Services provided or rendered by clubs", against which rates of duties chargeable as mentioned was 50% of the charges.
5. It is clear from these provisions of the Act themselves that in the absence of any notification of exemption from duty on the items mentioned in the Schedule under section 12-A of the Act, the services provided or rendered by clubs were chargeable with duty at the rate of 50% of the charges.
' A Notification bearing S R .0. No .546(1)/94 dated 9-6-1994was, however, issued by the Federal Government which reads as under:-- "S.R.0.546(1)/94---In exercise of the powers conferred by subsection (1) of section 12-A of the Central Excises and Salt Act, 1944 (I of 1944) read with section 4(2) thereof and in supersession of the Ministry of Finance Notification No,S.R.0.500(1)/93, dated the 14th June, 1993, the Federal Government is pleased to exempt:
(i) The goods produced or manufactured and services provided or rendered in Pakistan specified in column (2) of the Table below and falling under the headings and sub-headings of the First Schedule to the said Act specified in column (1) of the said Table, from so much of the duties of excise as are in excess of the rates of the duty specified in the corresponding entries in column (3) of the said Table; and
(ii) All other goods produced or manufactured and services provided or rendered in Pakistan as are given in the First Schedule to the said Act, except those specified in Notification S :R.0 .545(1)/94, dated 9th June, 1994, from the whole of excise duties."
7. The legal consequence flowing from the combined reading of both these clauses was that on any item not included in the table given under sub-clause (i) though mentioned in the Schedule of the Act, no duty was chargeable. The items which had been mentioned in the Table given under clause (1) were exempted from payment of duty beyond specified percentage. There is no dispute between the parties that so long as this notification remained in force, the clubs were not charged with any duty under the Act qua the services rendered by them because they were not included in the Table.
8. This notification was superseded by another Notification S.R.O. No,456(1)/96 dated 13-6-1996 which reads as under:-- "S.R.O. No,456(1)/96.---In exercise of the powers conferred by subsection (1) of section 12-A of the Central Excises Act, 1944 (I of 1944), read with section 4(2) thereof and in supersession of this Ministry's Notification No,S.R.0.546(I)/94, dated the 9th June, 1994, the Federal Government is pleased to exempt: ,(i) The goods produced or manufactured in Pakistan and services provided or rendered specified in column (2) of the Table below and falling under the heading and sub-headingnumbers of the First Schedule to the said Act specified in column (1) of the said Table, from so much of the duties of excise as are in excess of the rates of duty specified in the corresponding entries in column (3) of the said Table; and
(ii) All other goods produced or manufactured in Pakistan and services provided or rendered as are given in the First Schedule to the said Act, except those specified in Notification S.R.0.455(1)/96, dated 13th June, 1996, from the whole of excise duties."
9. In the Table mentioned in clause (1), no mention was made of Item No,9801.4000, therefore, the legal effect of this notification if remained unamended would have been the same irrespective of the fact that such an item was mentioned in the Schedule of the Act, therefore, no duty was chargeable on the services rendered by the clubs. However, through Notification No,458(1)/96 of the same date i.e, 13-6-1996, table under clause (1) of Notification/S.R.O. No,456(1)/96 was amended and Item No,9801.4000 was added in the said Table which provided that only those clubs which had air-conditioned rooms would be liable to pay duty under the Act subject to exemption in excess of 12-1/2%.
10. Dr. A. Basit, Advocate Supreme Court, learned counsel for the petitioners tried to raise a distinction between a restaurant, hotel and a club but we are not inclined to enter upon any such controversy, for club has been defined in the Central Excises Act itself and according to the definition of the said term as reproduced above, the petitioners fell within the ambit of the said term as such were liable to be dealt with accordingly in the matter of payment or otherwise of the duty.
11. Learned counsel for the petitioners attempted to argue that the question as to what exact amount was recoverable as excise duty for the period in dispute, should be decided. It is a matter of calculation and determination of the exact amount and in case any dispute is raised against the specified amount when sought to be recovered from the petitioners, the same shall be determined and decided in accordance with law by the concerned authorities and the petitioners if would feel aggrieved about the quantum of the amount, they shall be at liberty to seek remedy if available to them under the law.
12. Civil Petition No 347-L of 1999 according to the office note is barred by one day whereas Civil Petition No,317-L of 1999 is barred by 21 days. Civil Petition No,347-L of 1999 according to learned counselfor the petitioners is not barred by one day. According to him, the office has not calculated the period correctly. As regards Civil Petition No,317-L of 1999, it has been stated that certified copies and other documents were delivered to the learned counsel for preparation of civil petition but he abandoned the practice and the petitioners could not approach him.
13. Since the other civil petitions are to be decided on merits, therefore, in order to maintain consistency, we have decided these two petitions also on merits. Even otherwise, Civil Petition No,347-L of 1999 is not barred by time as the calculation has not been correctly done and as regards delay in filing the other civil petition, we in the above circumstances would condone the delay.
14. For the foregoing reasons, these petitions have no merits which are accordingly dismissed and leave refused.