' MUNIR A. SHEIKH, J.---Leave is sought against the judgment dated 30-9-2003 of the Lahore High Court, Rawalpindi Bench whereby Constitutional petition filed by the petitioner has been dismissed.
2. The petitioner is operating chair-lift from Bansra Galli to Pindi Point. The entertainment duty is chargeable under West Pakistan Entertainments Duty Act, 1958. Section 2, clause (d) of the said Act defines entertainment as follows:-- "2. (d) 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted on payment."
3. Charging section 3(1) of the Act reads as under.--"Duty on_payments for admission to entertainments.---(1) There shall be levied and paid to the Government on all payments for admission to any entertainment, a duty (hereinafter referred to as the "entertainments duty") at the rate of fifty per cent. Of such payment, excluding the amount of the duty: ' Provided that where the proprietor of an entertainment admits any person to any place of entertainment without any payment or on payment of an amount less than the amount normally charged for admission thereto, the entertainment duty shall nevertheless be levied and paid on the amount which would have been normally charged for admission to that place."
4. Learned counsel for the petitioner admitted that from 1988 when the petitioner started the said project, the entertainment duty had continuously been charged from it up to 1992 when through Punjab Finance Act, 1992, section 3-A was added in the said Act which reads as under:-- "3-A. Duty.On special classes of entertainments.---Notwithstanding the provisions of section 3, the duty on the entertainments mentioned below in Column No,2 shall be charged at the rates mentioned against each in Column No,3:-- Sr.No. Entertainment Rate of Duty
1. Admission to recreational parks, amusement parks fun lands and other similar recreational spots.(a) No duty for the first two years of the functioning of such entertainments; (b) ten per cent. of the payment for , admission during the next ten years, and
(c) twenty-five per cent. of the payment for admission thereafter.
2. Stage drama Stage drama
3. Admission to horse racing. Admission to horse racing.
5. Subsequently, section 3-A was omitted by Punjab Finance Ordinance, 2000. The question arose whether after the omission of the said section 3-A, entertainment duty could be charged on the chair-lift project of the petitioner. The case of the respondent was that it continued to be leviable under section 3 of the original Act after omission of section 3-A as it was being levied before the said section was added.
6. The act of the respondent of its insistence to charge the entertainment duty from the petitioner was challenged by filing Constitutional petition in the Lahore High Court, Rawalpindi Bench which has been dismissed through the impugned judgment dated 30-9-2003 against which leave is sought.
7. It has been held that though the duty was charged from the petitioner from 1992 under section 3-A as added by Punjab Finance Act, 1992 but after the omission of the said section through Punjab Finance Ordinance, 2000, the same was chargeable under section 3(1) of the original Act.
8. It appears that the intention behind addition of section 3-A in the original Act through Punjab Finance Act, 1992 was to bring entertainments mentioned therein as a class within the purview of the Act to charge entertainment duty which were not included in section 2(d) of the original Act. After the omission of section 3-A, the entertainment duty_ would not be chargeable only on those entertainments as a class which were introduced through the said amendment and the entertainments originally falling within the purview of section 2(d) would continue to be liable for payment of entertainment duty.
9. Learned counsel for the petitioner argued that since the High Court has held in the impugned judgment that entertainment duty was being charged from the petitioner under section 3-A added through Punjab Finance Act, 1992, therefore, after omission of the said section, subsequently no entertainment duty could legally be charged against the petitioner and the subsequent findings that the same could be charged under the original Act are inconsistent with the previous findings that it was chargeable under section 3(1) of the Act.
10. Learned Assistant Advocate-General has brought to our notice that the assumption of the High Court that the entertainment duty was charged from the petitioner under section 3-A is not correct. She has produced before us a notification dated 12-1-1995 whereby entertainment duty was exempted for a period of two years on entertainments and thereafter the rate on entertainment duty was reduced which the petitioner continued to avail. It was not a concession granted to the petitioner under section 3-A as added through Punjab Finance Act 1992in which it was also provided that on the entertainments mentioned therein, there will be no duty for two years and thereafter the same was recoverable at different reduced rates.
11. Learned counsel for the petitioner when questioned on instructions admitted that right from 1988 when this chair-lift was established by the petitioner, the duty had continuously been levied up to 1992 at the rates fixed under the Act and thereafter at reduced rate which according to learned counsel was under section 3-A whereas according to learned Assistant Advocate-General, it was as under the said notification issued under section 8 of the Act.
12. The question of interpretation of sections 2(d), 3(1) of the West Pakistan Entertainments Duty Act, 1958, section 3-A added through Punjab Finance Act, 1992 and the legal consequence of their omission by Punjab Finance Ordinance, 2000 and the notification of 1995 produced by the learned Assistant Advocate-General has risen which is undoubtedly a question of law of public importance, therefore, we would grant leave to appeal.
13. The appellant has also filed application for staying the recovery of the entertainment duty. Subject to furnishing bank guarantee in respect of the amount due as arrears of entertainment duty uptil today within one month from today to the satisfaction of the Registrar of this Court which on submission shall be accepted after hearing the representative of D D.G., E & T, Lahore, the recovery of the arrears shall remain stayed. The levy and recovery of entertainment duty hereinafter is not stayed. Both the parties are directed to maintain the accounts of the recoveries about which appropriate order shall be passed at the time of final disposal of the appeal.