COLLECTOR, CENTRAL EXCISE AND SALES TAX, LAHORE VS PAKISTAN PULP PAPER AND BOARD MAKERS ASSOCIATION, 2001 PTD-LAHORE-HIGH-COURT-LAHORE 3961 (2001)

2001 P T D 3961

[Lahore High Court]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

COLLECTOR, CENTRAL EXCISE AND SALES TAX, LAHORE and 2 others

versus

PAKISTAN PULP PAPER AND BOARD MAKERS ASSOCIATION through Kamran Khan and 3 others

Intra‑Court Appeal No .420 of 1994, In re: Writ Petition No. 16532 of 1993, heard on 02/07/2001.

(a) Words and phrases‑‑‑

‑‑‑‑"Representation"‑‑‑Connotation‑‑‑In the context of estoppel representation i.e. a party's declaration, act or omission, must be clear, definite, unambiguous, unequivocal‑‑‑ Person making representation should so conduct himself that reasonable man should take the representation to be true and believe that it is meant that he

should act upon the same.

Akhtarunnessa's case PLD 1957 Dacca 184 ref.

(b) Estoppel‑‑‑

‑‑‑‑Promissory estoppel ‑‑‑Limitations.

Following are the limitations on the application of the doctrine of promissory estoppel:‑‑

(i) The doctrine of promissory estoppel cannot be‑invoked against the Legislature or the laws framed by it because the Legislature cannot make any representation.

(ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out.

(iii) No agency or authority can be held bound by a promise or representation not lawfully extended or given.

(iv) The doctrine of promissory estoppel will not apply where no step has been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(v) The party which has indulged in fraud or collusion or obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.

Salah‑ud‑Din's case PLD 1991 SC 546 ref.

(c) Estoppel‑‑‑

‑‑‑‑Promissory estoppel ‑‑‑Applicability‑‑‑Correspondence between private persons and Government officials‑‑‑Non‑issuance of Notification by Competent Authorities‑‑‑Where there was only correspondence between the parties, the same did not bring the case under the doctrine of promissory estoppel ‑‑‑Estoppel could not be invoked for directing doing of a thing which was against law when the representation was made or the promise held out.

Salah‑ud‑Din's case PLD 1991 SC 546 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution is based on trichotomy.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1973 SC 473 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Interpretation of law‑‑‑ Scope‑‑‑High Court has jurisdiction to interpret law and has no jurisdiction whatsoever to take the role of Legislature or the policy‑maker.

Government of Pakistan through Secretary v. Zameer Ahmad Khan PLD 1975 SC 667 and Zameer Abmad Khan v. Government of Pakistan 1978 SCMR 327 ref.

(f) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss‑ `t(4), 45 & 48‑‑‑Exemption from payment of duty‑‑‑Withdrawal of exemption by Notification‑‑‑Validity‑‑‑Where an exemption from payment of excise duty of any other tax has been granted for a specific period on certain conditions and if a person fulfils those conditions, he acquires a vested right‑‑‑Such persons cannot be denied the exemption before the expiry of the specific period through an executive instrument like notification.

Messrs Army Welfare Sugar Mills' case 1992 SCMR 1652 ref.

(g) Act of Court‑‑‑

‑‑‑‑ Nobody should be penalized by the act of the Court.?

Mian Irshad Ali's case PLD 1975 Lah. 7 ref.

(h) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss. 3(4), 45 & 48‑‑‑Central Excises Act (I of 1944), S.3(5)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑?Maintainability‑‑‑Arrears of sales tax, recovery of‑‑‑Supervised Clearance Procedure‑‑‑Dispute was with regard to withdrawal of production capacity procedure approved by the Committee of Federal Government and Enforcement of Supervised Clearance Procedure‑‑‑High Court allowed the Constitutional petition and judgment of High Court was assailed before Division Bench of High Court in exercise of jurisdiction under S.3 of Law Reforms Ordinance, 1972‑‑‑Objection was raised to the maintainability of the Intra‑Court Appeal‑‑‑Validity‑‑‑Where the order impugned in the Constitutional petition was not appealable before any higher Authority, the Intra‑Court Appeal was maintainable and the bar under proviso to S.3(2) of Law Reforms Ordinance, 1972, was not attracted‑‑‑Division Bench of High Court directed the Authorities not to demand additional dues and penalties from the respondents‑‑‑Order passed by High Court under Constitutional jurisdiction was set aside and Intra‑Court Appeal was allowed accordingly.

Messrs Motilal Padampt Sugar Mills' case AIR 1979 SC 621; Raja Industries Pvt. Ltd.'s case 1996 MLD 980; Messrs Raja Industries Pvt. Ltd's case 1998 SCMR 307 and Akhtanznnessa's case PLD 1957 Dacca 184 ref.

A. Karim Malik for Appellants.

Ashtar Ausaf Ali for Respondents.

Date of hearing: 2nd July, 2001.

JUDGMENT

CH. IJAZ AHMAD, J.‑‑‑Briefly, the facts of the case are that respondent No. l filed Writ Petition No. 15294 of 1993 against present appellants with the prayer that action of respondents withdrawing production capacity procedure approved by the Committee of the Federal Government was illegal void and without lawful authority and writ be issued accordingly declaring the same as void and illegal, and Chairman, C.B.R. be directed not to enforce supervised clearance procedure on the petitioner as intimated to be made effective from 1‑11‑1993 on the petitioner.

2. Learned counsel for the present appellant produced photocopy of letter dated 6‑11‑1993 on 10‑11‑1993 before the learned Single Judge and the learned counsel for respondent No.1 after perusing the contents of the aforesaid letter sought permission to withdraw the writ petition and reserved the right of the petitioner‑Association to file fresh petition if new cause of action arose thereafter respondent No. l filed Writ Petition No.16532 of? 1993 with the prayer that action of respondents withdrawing the production capacity procedure approved by the Committee of the Federal Government is illegal, void and without lawful Authority and writ be issued accordingly declaring the same as void and illegal and further prayer that respondent No.2 be directed not to enforce supervised clearance procedure on the petitioner as intimated to be made effective from 1‑12‑1993 on the petitioner. The present appellants filed parawise comments, controverted allegations levelled in the writ petition. The learned Single Judge accepted the writ petition vide impugned judgment dated 4‑7‑1994; hence the present appeal.

The learned counsel for the respondents raised preliminary objection that I.C.A. is not maintainable by virtue of proviso of section 3(2) of Law Reforms Ordinance, 1972; that proceedings arising qua the production capacity is appealable before the Federal Government by virtue of section 3(5) of the Central Excises Act, 1944; that departmental order is appealable under section 48 of the Sales Tax Act, 1990. In support of his contention he relied upon unreported judgment in I.C.A. No.594 of 1993 (C.B.R. v. 7‑Up Bottling Company Pvt. Ltd.).

In rebuttal appellant's counsel submits that preliminary objection raised by learned counsel for respondents is not valid, that order of C.B.R. is not appealable before the Federal Government under the provisions of Sales Tax Act, 1990 as is evident from sections 45‑A and 46 of the said Act; that there is no appeal or revision available against order of C.B.R. under the provisions of Central Excises Act, 1944 as is evident from sections 35 and 35‑A and section 36 of the said Act.

The learned counsel for the appellant on merits submits Tat appellants did not give any incentive to the respondents. The respondents merely relying upon the correspondence between the respondents and officials of the appellants. The competent authority had not issued any notification under subsections (4) and (5) of section 3 of Central Excises Act, 1944 for collection of central excise duty in terms of letters exchanged between themselves; that aforesaid section prescribed condition precedent that C.B.R. had to issue Notification with the prior approval of Federal Government by Notification in official Gazette. The respondents failed to place on record any notifications issued by the competent authority in favour of the respondents; that learned Single Judge was erred in law to accept the writ petition on the principle of promissory estoppel; that promissory estoppel is not attracted in the present case as is evident from the following letters attached with the writ petition as Annexes B to K:‑‑

"20‑1‑1992; 22‑6‑1992; 8‑6‑1993; 2‑9‑1993; 5‑9‑1993, 26‑10‑1993; 26‑10‑1996; 6‑11‑1993; 6‑11‑1993; 4‑11‑1993; 14‑11‑1993 and 28‑11‑1993."

He further submits that aforesaid correspondence between the appellant and respondents was merely an arrangement for the time being between the Excise Department and Manufacturing of Paper and Board which was brought to an end w.e.f. 1‑12‑1993 by the Department as no viable scheme could ultimately be framed due to unrealistic and unreasonable attitude of the manufacturer; that neither the appellant nor their counsel had given any undertaking in the Court in the earlier round of litigation to respondents Nos.1 to 4. The contents of the letter dated 6‑11‑1993 did not reveal at all that appellants had given any undertaking in the earlier round of litigation; that appellant informed respondent No.1 in clear terms that in case viable revised scheme was not prepared by 10th November, 1993 the Government would be constrained to collect CED on actual production under supervised clearance scheme w.e.f. 1‑12‑1993; that appellant did not give any undertaking to' extend the previous approved arrangement beyond 30‑11‑1993; that respondents Nos.2 to 4 had started paying excise duty/sales tax under the supervised clearance system w.e.f. 1‑6‑1994; that respondents are not competent to choose a date of their choice for termination to the interim arrangement w.e.f 1‑6‑1994 and not w.e.f 1‑12‑1993' that learned Single Judge was erred in law to extend the cut‑off date from 1‑12‑1993 to 31‑5‑1994 over and above the contents of letter, dated 6‑11‑1993. He summed up his arguments that learned Single Judge has no jurisdiction to extend the period beyond the period prescribed by the appellant in their letter, that respondent No. l is not registered association under the provisions of Companies Ordinance 1984, the writ petition filed by respondent No. 1 in representative capacity without adopting procedure prescribed under Order I, Rule 8, C.P.C. was liable .to be dismissed.

6. The respondents' counsel submits that learned Single Judge was justified to grant the said period to the respondents to pay the impugned tax from 1‑12‑1993 to 3i‑5‑1994; that previous arrangement was continued between the parties on the incentive of the appellants; that respondent No. l had withdrawn Writ Petition No. 15294 of 1993 on the basis of the letter dated 6‑11‑1993 produced by the learned counsel for the appellants. This fact alone is sufficient that principle of promissory estoppel is attracted in the present case by all force; that appellant had given legitimate expectations to the respondents on the basis of the aforesaid letters and other letter mentioned in the contents of the writ petition and it, the impugned judgment; that it is the duty and obligation of the appellant to adopt fair procedure to levy impugned tax upon the respondents; that learned Single Judge 'was justified to accept the writ petition of respondents on the well‑known principle of estoppel by conduct. The conduct of the appellants is clearly borne out from the correspondence between the respondents and appellants; that appellants had to levy the impugned tax after notice to the respondents as respondent No. l had withdrawn his earlier writ petition on account of letter, dated 6‑11‑1993 of the appellants. He further submits that appellants are duty bound to levy the tax after providing fair procedure but the respondents had withdrawn the notification unilaterally in violation of the principle of natural justice. He further submits that financial year ends on 30th June of each year and the learned Single Judge was justified to accept the writ petitions by extending benefit to the respondents from 1‑12‑1993 to 31‑5‑1994. He summed up his arguments that learned Single Judge was justified to allow the relief to the respondents on the basis of the conduct of the appellants by virtue of aforesaid letters and before the Court. He further submits that respondents should not be penalized by the act of the Court. He further urged that status quo was granted by the learned Single Judge vide order, dated 30‑11‑1993. He further urged that respondents did not maintain the account on account of the status quo order passed 'in their favour. He further submits that in the interest of justice and fairplay, the appeal be dismissed. In support of his contentions he relied upon the following judgments:‑‑

AIR 1979 SC 621 (M/s. Motilal Padampt Sugar Mills' case); 1996 MLD 980 (Raja Industries Pvt. Ltd's case; 1998 SCMR 307 (M/s. Raja Industries Pvt. Ltd.'s case).

???????????

7. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. It is better and appropriate to reproduce the relevant Notification/correspondence between the parties in chronological order to resolve the controversy between the parties which are as under:‑‑

Letter dated 21‑11‑1991:

In supersession of Government of Pakistan, Central Board of Revenue, Islamabad's Order ‑No.2(7)‑PC/91 dated the 20th July, 1991, the Federal Government is pleased to constitute a Committee comprising the following to study devise and recommend to the Government workable capacity duty scheme in respect of sugar, yarns, paper and paperboard and any other item selected by the Government for the purpose;

(2) Terms of reference of the Committee are as under‑‑‑

(a) To devise workable, inflation indexed capacity taxation schemes for their implementation from the financial year 1992‑93, in respect of sugar, yarn, paper and paperboard and any other item selected by the Government;

(b) to submit its recommendations by the 15th April, 1992.

Letter dated 20‑1‑1992:

I am directed to enclose an order of Federal Government relating to revised composition of Committee for fixed excise duty/sales tax under the Shoorai taxation scheme and request you to intimate the Board about the names of two nominees who will sit as the representatives of your industry in the Committee.

Letter dated 15‑6‑1992:

Please refer to your letter dated 15‑6‑1992 and find enclosed the list of units and their fixed capacity as desired.

Letter dated 8‑6‑1993:

According to the spirit of the said letter, the fixed duty will not be remained operative after 10th June, 1993 in respect of the items manufactured by you. As such you are now required to pay CE duty/S. Tax on the basis of monthly fixed revenue for the first 10 days of June, 1993 and after 10th June, 1993 the CE duty/S. Tax should be deposited on the basis of actual clearance/supply.

You are, therefore, directed to maintain CE duty/S. Tax records as prescribed under Chapter XV of CE Rules, 1044 and S.Tax Act 1990. The manufacturers who have already deposited advance CE duty/S. Tax and shall switch over to actual clearance, are however, allowed to adjust the said advance deposit of CE duty/S. Tax against their actual clearance basis which will be only indicated in monthly S. Tax return/ACL Register. Any sort of guidance/assistance in this process of switching over will be providing by this department as and whenever requested????..

The operative hart of Letter dated 2‑9‑1993.‑‑‑In the end we hope that sympathetic consideration will be given to remove the clouds of uncertainty for the continuity of the scheme. We earnestly once again request that either the required S.R.O. be issued or the date of continuity of the scheme may further be extended up to 30th September, 1993 immediately.

Letter dated 5‑9‑1993:

I am directed to refer to the subject noted above and say that the existing interim arrangement of duty collection on the basis of provisionally assessed capacities of units has been further extended up to 30‑11‑1993.1 am further directed to inform you that last proposals submitted by sub‑committee are not acceptable to the Board, you are therefore, requested to prepare alternate viable proposals and send the same to Collector, Central Excise and Sales Tax, Lahore in order to enable him to send a final/consolidated proposal which should reach the Board before 20th September, 1993 positively.

Letter dated 26‑ 10‑1993:

I am directed to refer to Board's letter No.5(17)‑PC/91 dated the 19th September, 1993, and to inform that all instructions and orders about collection of central excise duty on paper and paperboard industry on capacity basis are hereby withdrawn w.e.f. 1‑11‑1993 and central excise duty from this industry shall be collected under supervised clearance w.e.f 1‑11‑1993. You are accordingly requested to inform all paper and paperboard unit/Association about this change immediately.

(2) You are also requested to arrange stock taking of the said units forthwith and post officers of integrity and competence to all papar r and paperboard units w.e.f. 1‑11‑1993 for. supervised clearance Kindly ensure that Government get its due revenue from this Industry. Compliance report may be sent to the Board after above action is taken.

Letter dated 26‑10‑1993:

In exercise of the powers conferred by section 37 of the Central Excises and Salt Act, 1944 (I of 1944) the Central, Board of Revenue is pleased to direct that the following further amendment shall be made in Central Excise Rules, 1944, namely:‑‑

1n the aforesaid Rules, in rule 235, in sub‑rule (1) the entries against the S.R No.47, shall be omitted. This Notification will take effect on 1st November, 1993.

Letter dated 4‑11‑1993:

With reference to our meeting with your goodself on 31st October, 1993 at Islamabad. I am very much thankful to you for extending Capacity Tax System up to 31st November, 1993. As regards our commitment to your goodself for completion of the remaining exercise we are fastly mobilising our teams in different regions to collect the data for onward transmission to you before 14th November, 1993. In this connection I have requested the Collector, Central Excise and Land Customs, Lahore to issue necessary directive to all the Collectorate to extend full cooperation to our respective teams and also provide them necessary information as and when required by them, In this context very humbly I would like to request your goodself to kindly issue similar directive from your good yield early result for fruitful discussions which are to be held on 14th November, 1993 at 10‑00 a.m. when we will meet you in your office. As regards modalities of the S.R.O. to be prepared by our Association, it‑is nearly to complete expeditiously and will be sent to you in advance by 8th November, 1993."

Letter dated 6‑11‑1993:

Please refer to Board's Circular dated 31st October, 1993 whereby you were asked not to give effect to Board's orders issued vide Board's letter of even number dated 20th October, 1993, for ?collection of central excise duty on paper and paperboard under supervised system of clearance w.e.f 1st November, 1993. You are requested to continue the collection of central excise duty from paper and paperboard units till 30th November, 1993 under the existing averagement. You are also requested to send your final proposals/report on the issues/matters indicated in Board's letter No.5(17) P/C/91 dated 19th September, 1993. Paper and Paperboard Association of Manufacturer may be informed that if the revised scheme which is to be prepared by 10th November, does not reflect the true capacities of the factories then Government will be constrained to collect central excise duty on actual production under supervised clearance scheme w.e.f. 1st December, 1993 Letter dated 6‑11‑1993:‑‑

Please find enclosed a copy of letter dated 4th November, 1993 from Chairman, Pakistan Pulp Paper and Paper and Board Makers Association, Karachi with the request to extend full cooperation to M/s. Pakistan Pulp Paper and Board Makers Association, Karachi for completion of the exercise about capacity assessment of various units of paper and paperboard in your jurisdiction.

Letter dated 14‑11‑1993:

Sir evasion of Central Excise Duty was a loss to Government exchequer and simultaneously to the paper and paperboard industries which were converted into sick industry. If steps that you took in February, 1993 for capacity taxation were not taken then today we would have experienced closure of major number of industries.

Letter dated 22‑11‑1993:

We would like to recall that the Central Board of Revenue vide its order, dated 26‑11‑1993 was pleased to order the collection of Central Excise Duty on Paper and Paperboard under supervisory ?system of clearance with effect from 1st November', 1993. However, on our representation made on 31st October, 1993 to your goodself at Islamabad you were kind enough to withdraw the order of supervisory clearance system till further orders and later on vide your letter No.C. No.1(22) C.B.It./93 dated 6‑11‑1993 you were pleased to issue order for continuity of Fixed Capacity System up to 30‑11‑1993. In the meantime this Association was directed to produce the production figures for the years 1990‑91, 1991‑1992 and 1992‑93 and also to make its final representation on 14^th November, 1993 in person before you at Islamabad. Sir in compliance of your aforesaid directive the delegation of this Association met you in your office at Islamabad on 14th November, 1993 ' and provided to you the desired information. Sir, we were expecting very early response in this regard from your goodself. But we have riot received any communication from your end so far, November, 30th. is heading and this Association is totally unaware of future policy of C.B.R. in respect of Fixed Capacity Tax System and its continuity quarries in this respect are being made off and on by our members and we are unable to give them any satisfactory reply. In view of above facts your goodself is very earnestly requested to kindly let us know the future policy on the subject to be adopted.

Letter dated 28‑1 1‑1993:

It is regretted that pct response to our aforesaid communications was made by your goodself (a) my several attempts to contact you on telephone. At last succeeded today 28th November, 1993 at 11‑30 a.m'. And I was really shocked and surprised on your flat refusal for the continuity of capacity tax system morn 1st December, 1993 in spite of your assurance to Lahore High Court through your advocate in writ petition withdrawn by our Association with the lope that the rules will be framed by your department as agreed upon with the approval of the Federal Committee. Sir the decision conveyed by you today is neither in good interest of Industry nor C.B.R. This? Association has started hard to build confidence between tax‑payer and tax collector‑ This confide‑ice is shattered we afraid what it will possible to be restored. In the National interest we once again appeal you to kindly extend the date of capacity tax system and be pleased to invite this Association for dialogue immediately. Regards.

In case the aforesaid letters are put in juxtaposition then it is crystal clear that the appellants did not make any representation to the respondents. The word representation' writ interpreted by the Dacca High Court it, PLD 1957 Dacca 184 (Akhtarunnessa's case) and defined the word 'representation' as follows:‑‑--

"In order to find an estoppel, the representation i.e. a party's declaration, act or omission, must be clear, definite, unambiguous, unequivocal. The person making the representation should so conduct himself that reasonable man would take the representation to be true and believe that it was meant that he should act upon it."

The letter, dated 6‑11‑1993 is sufficient notice to the respondents as is evident from the following operative part of the letter dated 6‑11‑1993:‑‑

"Paper and Paperboard Association of manufacturer may be informed that if the revised scheme which is to be prepared by 10th November, does not reflect the true capacities of the factories then Government will be constrained to collect central excise duty on actual production under supervised clearance scheme w.e.f. 1st December, 1993. "

The subsequent letters also did not reveal that any commitment was made by the appellants with the respondents: The Hon'ble Supreme Court has laid down certain limitations for the purpose to apply the doctrine of promissory estoppel in PLD 1991 SC 546 (Salah‑ud‑Din's case) which are reproduced hereunder:‑‑

"(i) The doctrine of promissory estoppei cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation.

(ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out.

(iii) No agency or authority can be held bound by a promise or representation not lawfully extended or given.

(iv) The doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(v) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.

Learned counsel for the respondents failed to bring the case of the respondents within the parameters prescribed by the Hon'ble Supreme Court in Salah‑ud‑Din's case (supra). The appellants had authority to levy and collection of duty under section 3(4) under the Central Excises Act 1944. The same is reproduced hereunder:‑‑

(4) With approval of the Federal Government the Central Board of Revenue may in lieu of levying and collecting; under subsection (1) duties of excisable goods by Notification in the official Gazette levy, and collect duties on the production capacity of plants machinery undertakings establishment or installations producing or manufacturing such goods and such notifications shall specify ‑‑

(a) the? principles for the determination of production capacity;

(b) the production capacity, as determined in accordance with such guiding principles of the plants machinery, undertakings establishments or installations affected by it‑

(c) the manner of collection of such duty.

Similarly, the appellants have authority to impose sales tax under section 3(4) of Sales Tax Act, 1990 which is reproduced hereunder:‑‑---

"The Federal Government may, in addition to or in lieu of levying and collecting the tax under subsection (1) levy and collect such fixed amount of tax on any goods or class of goods to be payable by registered person or class of registered persons, supplying such goods or class of goods, in such mode, manner and at time, and subject to such conditions and limitation as it may specify by a Notification in the official Gazette."

The aforesaid provisions of law prescribed conditioned precedent to levy, the aforesaid tax by issuing a Notification in the official Gazette. In the present case no notification was issued by the competent authority under the provisions of the aforesaid laws. Therefore, certain correspondence between the appellants and respondents did not bring the case of the respondents under the doctrine of promissory estoppel The promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out, as per principle laid down by the Hon'ble Supreme Court in Salah‑ud‑Din's case supra. The contentions of the appellants" counsel has no force that the respondents were entitled relief till 31st May, 1994 keeping in view financial year. The question of financial year in the present case does not arise in view of the letter dated 6‑11‑1993 in which the date was fixed 1‑14‑1'993. It is settled principle of law that our Constitution is based on trichotomy as per law laid down in Zia‑ur‑Rehman's case (PLD 1973 SC 49) and (PLD 1973 SC 473) Mian Nawaz Sharif"s case. The Court has only jurisdiction to interpret the law and has no jurisdiction whatsoever to take the role of Legislature or the policy maker. In arriving to this, conclusion we are fortified by the following judgments of the Hon'ble Supreme Court:‑‑

PLD 1975 SC 667 (Government of Pakistan through Secretary v. Zameer Ahmad Khan).

1978 SCMR 327 (Zameer Ahmad Khan v. Government of Pakistan).

It is settled principle of law that‑if an exemption from payment of excise duty or any other tax has been granted for a specific period on certain conditions and if a person fulfils those conditions, he acquires a vested right. He cannot be denied the exemption before the expiry of the specific period through an executive instrument like notification as per principle laid down by the Hon'ble Supreme Court in M/s. Army Welfare Sugar Mills' case (1992 SCMR 1652). Keeping in view the contents of the writ petition and the correspondence between the appellants and the respondents. The vested right did not accrue to the respondents. It is pertinent to mention here that the learned Single Judge granted the status quo order vide order, dated 30‑11‑1993 in the following terms:‑--

"Meanwhile status quo shall be maintained subject to the petitioner/manufacturer maintaining the account of actual production of the items produced by them under Notification to the Collector, Excise and Sales Tax Department in respective Zones, this is subject to notice for a very early date."

It is settled principle of law that nobody should be penalized by the act of the Court. In arriving to this conclusion we are fortified by the law laid down by the Division Bench of this Court in Mian Irshad Ali's case (PLD 1975 Lah. 7)..

Now we intend to decide the preliminary objection raised by the learned counsel for the respondents. It is better and appropriate to reproduce the prayer of the Constitutional petition and relevant provisions of law to resolve the controversy between the parties:‑‑

PRAYER

"that the action of the respondent withdrawing the production capacity procedure approved by the Committee of the Federal Government is illegal, void and without lawful authority and writ be issued accordingly declaring the same as void and illegal and further prayed that the respondent No.2 be directed not to enforce the "Supervised Clearance Procedure" on the petitioner as intimated to be made effective from 1‑12‑1993 on the petitioner. "

The relevant provisions of Central Excises Act, 1944 are reproduced hereunder:‑‑ ???????

"Section 3(5).‑‑The production capacity of any plant or machinery or part thereof specified in a Notification under subsection (4) shall, upon an application made to the (Federal Government) within thirty days of the Notification by any aggrieved person, be reviewed by (Standing Tribunal) constituted under subsection. (6) to ,which the application shall be referred; and the decision of the (Standing Tribunal) (confirming, reducing or increasing the production capacity shall be final).

(Provided that, in the case of any plant or machinery used for the manufacture of cotton fabrics. or cotton yarn, the production capacity of which was determined before the 30th June, 1970. Any aggrieved persons may, within such time as the (Federal Government) may, by Notification in the official Gazette, specify in this behalf, make an application in writing to the (Federal Government) for re‑examination of the production capacity, and such application shall be referred by the (Federal Government) to a (.Standing Tribunal constituted under subsection (6); and the decision of the Standing Tribunal on such reference shall be final).

Provisions of Sales Tax Act, 1990

Section 45

Appeals.‑‑‑(1) Any person, including the Sales Tax Department.

aggrieved by any decision or order made under this Act by an Officer of Sales Tax below in rank than a Collector may, within thirty days of the date of communication of such decision or order, appeal to the Collector of Sales Tax (Appeals):

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector of Sales Tax (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeals within the specified period."

Section 48

Recovery of arrears of tax.‑‑‑(1) Where any amount of tax levied, penalty imposed or demand raised under any bond or other instrument executed under this Act is due from any person, the Officer of Sales Tax tray ......

In case the aforesaid provisions and prayer are put in juxtaposition then the impugned order in Constitutional petition of the appellants by respondents is not appealable before any higher authority of the appellants under the provisions of aforesaid laws. In this view of the matter this I.C.A. is maintainable and the bar under proviso of section 3(2) of Law Reforms Act,? 1972 is not attracted.

In view of what has been discussed above, this I.C.A. is accepted and the impugned order is set aside with the rider, the appellants are not entitled to demand additional dues and penalties from the respondents.

Disposed of with the aforesaid observations.

Q. M. H. /M.A K./C‑111/L???? ?????????????????????????????????????????????????????????? Appeal allowed.