(On appeal from the order, dated 3-2-1998 of the High Court of Sindh passed in S.T.C. No.250 of 1997).

(a) Sales Tax Act (IX of 1990)---

----S.36---General Clauses Act (X of 1897), S.14---Demand in terms of S.36, Sales Tax Act, 1990 need not be a single demand at the level of a specified officer---More than one demand in terms of S.36, Sales Tax Act, 1990 at the-level of the same officer cannot be ruled out unless manifest injustice and palpable inequity is the result thereof.

While interpreting section 36 of the Sales Tax Act, '1990, one cannot be unmindful of the, provision of section 14 of the General Clauses Act, 1897, which postulates that where, under a Federal statute, any power is conferred then, unless a different intention appears, such power may be exercised from time to time as occasion requires. Thus, a demand in terms of section 36 of the Sales Tax Act need not be a single demand at the level of a specified officer. Fairly and beneficially stated the proposition would be that more than one demand in terms of section 36 at the level of the same officer cannot easily be ruled out unless manifest injustice and palpable inequity is the result thereof.

(b) Sales Tax Act (IX of 1990)---

----S.5 [as amended by Finance Act (IX of 1996)]---Amendment made in S.5, Sales Tax Act, 1990 by the Finance Act, 1996, could not be deemed to be a remedial provision to have retrospective effect.

Commissioner of Income Tax v. Olympia 1988 PTD 532 and Commissioner of Income Tax v. Shahnawaz Ltd. 1993 SCMR 73 distinguished.

(c) Interpretation of statutes---

---- Interpretation of a statute is to adhere to the ordinary meaning of the words used unless that is at variance with the intention of the Legislature which intention is to be collected from the statute itself---If the language of the statutory provision is unambiguous and the statute's meaning is clear, the statute must be accorded the express meaning without deviation.

Crawford on The Construction of Statutes and Mexwell on the Interpretation of Statutes ref.

(d) Interpretation of statutes---

---- Casus omissus, rule of---Application---Omission in a statute cannot, as a general rule, be supplied by construction---Principles.

Omission in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular case is omitted from the terms of a statute, even though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the Court cannot include the omitted case by supplying the omission. This is equally true where the omission was due to the failure of the Legislature to foresee the missing case. As is obvious, to permit the Court to supply the omissions in statutes, would generally constitute an encroachment upon the field of the Legislature. Where the statute's meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as-'he thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute.

(e) Sales Tax Act (IX of 1990)---

----S.5---Interpretation of S.5, Sales Tax Act, 1990---Provision of S.5 of the Act being clear and unambiguous, was not a case of casus omissus.

Siraj-ul-Haque Memon, Advocate Supreme Court with Naraindas C. Motaini, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th July, 1998.

ORDER

NASIR ASLAM ZAHID, J.---This petition has been filed by State Cement Corporation of Pakistan Limited seeking leave to appeal against the impugned order, dated 3-2-1998 of the High Court of Sindh dismissing its Sales Tax Case No.250 of 1997. We have heard at length the arguments of Mr. Sirajul Haque, learned Advocate Supreme Court for the petitioner, and with his assistance, referred to the record.

2.???????? Relevant facts are given in the impugned order, of the High Court which read as follows: ---

"The applicants, State Cement Corporation of Pakistan, submitted two bills of entry on 30-5-1993 in relation to certain imports made by them but because an exemption pertaining to payment of sales tax, operating in their favour, had since lapsed an undertaking to obtain a matching exemption from the Central Board of Revenue was tendered. Since the period of three months, stipulated in the undertaking, drew near expiry and the exemption was not produced the Collector of Customs through a letter, dated 13-9-1993, requested the Chairman of the applicant-corporation to arrange payment of sum of Rs.3,48,15,627 which on account of the projected obtainence of the exemption were not collected earlier on. It is the applicants case that, in response, on 29-1-1994 the applicants paid sales tax at the rate of 12-1 /2 % ad valorem, totalling Rs.3,41,78,399. However, in course of time, the Collector realised that because payment of sales tax was not made at the time it ought to have been made the rate at which the tax was leviable would have been the prevalent rate at the time of actual payment, which incidentally stood enhanced to the level of 15 % ad valorem as against the earlier levy at 121/2 %. Such resulted in a demand being raised at the level of the Collector on 25-3-1995 for making good the short levy worked out to be Rs.35,1,431. The applicants challenged this demand before the Customs, Excise and Sales Tax Appellate Tribunal through an appeal but the appeal was dismissed on 11-6-1996. Then the applicants applied to the Tribunal for making a reference to this Court but such application was also turned down per order, dated 29-5-1997. Hence the present sales tax case."

3. After the Tribunal dismissed the application of the petitioner for reference to the High Court, petitioner filed an application/statement under section 47(4) of the Sales Tax Act, 1990, since substituted by new provisions, for determination of the following questions arising out of the case: ---

"(1) Whether the demand raised on 25-3-1995 (Annexure-P) by the Collector did not amount to reopening the demand raised earlier on 13-9-1993 (Annexure-D).

(2) Whether the Demand (Annexure-F) is not hit by the provisions of law contained under section 45-A (4) of the Sales Tax Act, 1990.

Section 47(4) of the Sales Tax. Act (before it was amended by the Finance Act (XXII of 1997) read as follows: ---

"If, on an application made under subsection (i), the Appellate Tribunal refused to state the case on the ground that no question of law arises, the aggrieved person or the Collector, as the case may be, within ninety days on which the order refusing to state the case is passed, apply to the High Court, and the High Court may, if it is not satisfied with the decision of the Appellate Tribunal, frame the question of law and proceed to hear the case. "

4. From the impugned order of the High Court it follows that the main plea raised on behalf of the petitioner before the High Court was based on section 36 of the Sales Tax Act 1990. The argument was that demand pertaining to non-payment of short levy or payment of sales tax can only be made once and not repeatedly and it was argued that, in the case in question, apparently two notices dated 13-9-1993 and 25-3-1995 were issued by the same officer, that is, Collector, and that the second demand, in this case, could only be made by the Board of Revenue in exercise of revisional powers as the first demand had originated from the Collector.

The High Court referred to sections 36 and 45-A of the Sales Tax Act which read as follows:

"36. Recovery of tax short levied.---(1) When for any reason the tax due has not been levied or paid or has been short-levied or short-?paid or any tax has been erroneously refused the person liable to pay the tax or to whom such refund has been erroneously made shall pay the tax due on written demand made within five years from the date on which the tax became due or was paid or adjusted in the account?-current, if any, the period of five years shall commence from first day of July, 1990:

Provided further that where a show-cause notice under sections 3 and 28 of the substituted Sales Tax Act, 1951 (III of 1951), had been issued to a person before coming into force of the Sales Tax Act, 1990 it shall be deemed that such notice was issued under the provisions of the Sales Tax Act, 1990.

2. In case the person liable to pay tax objects to writing to the demand of tax, he shall be provided an opportunity of being heard.

45-A. Powers of the Board and Collector to call for records.---(1) The Board may, of its own motion, call for and examine the record of any departmental proceedings under this Act or the rules made thereunder for the purpose of satisfying itself as to the legality or propriety of any decision or order passed therein by an Officer of Sales Tax, it may pass such order as it may think fit:

Provided that no order imposing or enhancing any penalty or fine requiring payment of a greater amount of sales tax than the originally levied shall be passed unless the person affected by such order has been given an opportunity of showing cause and -of being heard.

(2) No proceeding under subsection (1) shall be initiated in a case where an appeal under section 45 or section 46 is pending.

(3) No order shall be made under this section after the expiry of three years from the date of original decision or order of the subordinate officer referred to in subsection (1).

(4) The Collector may exercise the powers conferred on the Board by subsection (1) in respect of any case decided by an officer subordinate to him."

The High Court did not accept the contentions raised on behalf of the petitioner and held as follows:

"In the first place, it does not seem factually correct that two successive demands in terms of section 36 were raised by the Collector. The first of these was certainly not a demand in terms of section 36, aforesaid, because that pertained neither to a non-levy nor to a non-payment nor to a short payment. At the time the initial payments pursuant to the bills of entry were made by the applicants everyone knew that the payment was due but the payment was deferred because the applicant, being a State-run organization was provided an opportunity to obtain an exemption against payment of sales tax much the same way as it had enjoyed earlier on. Thus, in this view, the first demand upon discovery of a short levy and short payment was made only on 25-3-1995 when a realization drawn upon the customs that recovery at the rate of twelve and a half per cent only had been made when the rate applicable was no less than fifteen per cent. ad valorem.

Even otherwise, interpreting section 36 of the Sales Tax Act, 1990, one cannot be unmindful of the provision of section 14 of the General Clauses Act, 1897, which postulates that where, under a Federal statute, any power is conferred then, unless a different intention appears, such power may be exercised from time to time as occasion requires. Thus, a demand in terms of section 36 of the Sales Tax Act need not be a single demand at the level of a specified officer. Fairly and beneficially stated the proposition would be that more than one demand in terms of section 36 at the level of the same officer cannot easily be ruled out unless manifest injustice and palpable inequity is the result thereof which, of course, is not the position here. "

The view taken by the High Court is unexceptionable and does not call for interference.

It may be observed that the only question involved was whether the petitioner was liable to pay sales tax on the consignment in question at the rate of 121/2% or at 15%, the increase having taken place through the Finance Act, 1993. Prior to the increase, the rate of sales tax was 12¹/₂ %.

5. However, Mr. Sirajul Haque Memon, learned Advocate Supreme Court for the petitioner, advanced another argument, which had been raised on behalf of the petitioner before the Collector and in appeal before the Tribunal. For appreciating the argument of learned counsel reference has to be made to sections 5 and 6(l) of the Sales Tax Act which read as follows: ---

"5. Chance in the rate of tax.---If there is a change in the rate of tax---

(a) a taxable supply made in Pakistan by a registered person shall be charged to tax at such rate as is in force at the time of supply;

(b) imported goods shall be charged to .tax at such rate as is in force,---

(i) in case the goods are entered for home consumption, on the date on which a bill of entry is presented under section 79 of the Customs Act, 1969 (IV of 1969);

(ii) in case the goods are cleared from warehouse, on the date on which a bill of entry for clearance of such goods is presented under section 104 of the Customs Act, 1969 (IV of 1969):

Provided that where a bill of entry is presented in advance of the arrival of the conveyance by which the goods are imported, the tax shall be charged as is in force on the date on which the manifest-of the conveyance is delivered:

Provided further that if the tax is not paid within seven days of the presenting of the bill of entry (under section 104 of the Customs Act) the tax shall be charged at the rate as is in force on the date on which tax is actually paid.

6. Time and manner of payment.---(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 (and the provisions of the said Act shall, so far as they relate to collection, payment and enforcement of tax under this Act on such goods where no specific provision exists in this Act, apply)."

It may be noted that, in the second proviso to section 5, the words "under section 104 of the Customs Act were only added it the said proviso by the Finance Act, 1996. The second proviso, before its amendment by Finance Act, 1996, had read as follows: ---

"Provided further that if tax is not paid within 7 days of the presenting of the bill of entry the tax shall be charged at the rate as is in force on the date on which tax is actually paid."

The argument of Mr. Sirajul Haque Memon, learned counsel for the petitioner, was that this amendment adding the words "under section 104 of the Customs Act" are in the nature of remedial provision of law and, therefore, would have retrospective effect.

According to learned counsel, as the goods in question were meant for home consumption and the bill of entry had been presented prior to the increase in the rate of sales tax from 121/2 % to 15 %, petitioner-corporation was liable to pay sales tax at the rate of 121/x% and not at the increased rate of 15 %. It was submitted that the second proviso related to goods covered by bills of entry under section 104 of the Customs Act and as the amendment in the second proviso had retrospective effect being a remedial provision, the same proviso did not apply to the case of the sales tax payable by the petitioner-corporation in respect of goods in question.

In support of the contention that the aforesaid amendment in the second proviso to section 5 of the Sales Tax Act was remedial in nature, learned counsel referred to "Notes on Clauses" presented alongwith the Finance Bill, 1996 and in relation to the said clause, the Note read as follows: ---

"Seeks to rectify an existing flaw in the drafting by re-arranging proviso in section 5. "

Reliance was also placed on the judgment of the Sindh High Court in the case of Commissioner of Income Tax v.. Olympia 1988 PTD 532 (H.C. Kar.) and also on the judgment of this Court in the case of Commissioner of Income Tax v. Shahnazwaz Ltd. 1993 SCMR 73 which judgment dismissed the appeal filed by the department against the judgment of the Sindh High Court rendered in the earlier referred case.

6. We have gone through the aforesaid two judgments relied upon by learned counsel for the petitioner-corporation. The question there related to the amendment of section 18-A (6) by the Finance Act, 1973. In the judgment of the Sindh High Court it was observed as follows: ---

"As observed earlier, prior to its amendment by the Finance Act, 1973 subsection (6) of section 18-A in case an assessee came within the mischief of this subsection, required such assessee to pay an additional amount, described as 'additional tax', at the rate of 2 per cent per mensem upon the shortfalls for the period from the first of April of the year in which payment against the tax was made, upon the date of regular assessment. If the regular assessment was delayed for any reason, the assessee was adversely affected inasmuch as till such time the regular assessment was made, the liability to pay additional tax at the rate of 2 per cent per mensem continued. A happy and remedial change was brought about by the amendment in this subsection by the Finance .Act, 1973, which restricted the period to a maximum of 15 months for which the aforesaid additional tax at the rate of 2 per cent per mensem could be charged i.e. from the first date of April of the year in which the tax paid up to 30th June of the next year following or up to date of the regular assessment, whichever was earlier."

7. The judgment of the Sindh High Court relied upon by the learned counsel, which was confirmed by this Court, is of no assistance for the contention advanced in the present case that the amendment in the second proviso to section 5 of the Sales Tax Act is retrospective in nature. The judgment relied upon was dealing with altogether a different situation and also to a different provision of law under the Income-tax Act, 1922, as amended by the Finance Act of 1973. Here the amendment in section 5 has been brought about by the Finance Act of 1996. Neither the Finance Act, 1996 prescribed that the said amendment would have retrospective effect nor is it a case where the said amendment could be deemed to be a remedial provision to have retrospective effect.

The second proviso to section 5 of the Sales Tax Act before its amendment was clear in its terms. There was no ambiguity in the words used in the second proviso to rely on any external aids for interpreting its provisions. The second proviso before its amendment by the Finance Act, 1996 was to the effect that if the tax was not paid within 7 days of the presenting of the bill of entry the tax was to be charged at the rate as was in force on the date on which the tax was actually paid. There being no ambiguity in the provision, resort to "Notes on Clauses" in respect of the Finance Bill, 1996 as an external aid for interpretation of the said provision is misconceived. To quote Crawford on "The Construction of Statutes", if the language of the statutory provision is unambiguous and the statute's meaning is clear, the statute must be accorded the expressed meaning without deviation. The golden rule of interpretation of statutes is to adhere to the ordinary meaning of the words used unless that is at variance with the intention of the Legislature which intention is to be collected from the statute itself. (Mexwell on the Interpretation of Statutes).

8. Mr. Sirajul Haque Memon, learned counsel for the petitioner? corporation, also relied upon section 6(1) of the Sales Tax Act which provides that the sales tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were duty of customs payable under the Customs Act, 1969. It was submitted by learned counsel that in section 30 of the Customs Act amendment had been made by the Finance Ordinance of 1979 but, through omission, such amendment had not been made in the second proviso to section 5 of the Sales Tax Act and, as under section 6(1) of the Sales Tax Act, sales tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, by reference, second proviso to section 30 of the Customs Act would be applicable in respect of payment of sales tax.

We are not impressed by this argument as section 5 of the Sales Tax Act, before its amendment by the Finance Act, provides in very clear and unambiguous terms that if the sales tax was not paid within 7 days of presentation of thereof are reproduced here: ---

"Omission in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular case is omitted from the terms of a statute, even though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the Court cannot include the omitted case by supplying the omission. This is equally true where the omission was due to the failure of the Legislature to foresee the missing case. As is obvious, to permit the Court to supply the omissions in statutes would generally constitute an encroachment upon the field of the Legislature.

Where the statute's meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute."

The provision in question being clear and unambiguous, it was not a case of casus omissus.

10. No case is made out for grant of leave. This petition is dismissed and leave is refused.

M.B.A./S-87/S

Petition dismissed.