(On appeal from the judgment of High Court of Sindh, Karachi dated 25-10-2001 passed in Special Central Excise Appeal No. 6 of 2001).

(a) Central Excise Rules, 1944---

----Rr. 10 & 13---S.R.O. 547(I)/96, dated 1-7-1996---Central Excises Act (I of 1944), Ss. 35(c) & 36(c)---Constitution of Pakistan (1973), Art. 185(3)---Excisable goods exported without payment of duty--Limitation for recovery of evaded duty;--Export related to period from 2-4-1998 to 6-11-1998---Show-cause notice was issued on 21-5-1999--Plea of petitioner was that claim of respondent was time-barred-- Validity ---Such plea though raised in appeal was neither pressed before Tribunal nor was raised before High Court for consideration---Mere taking grounds in appeal would not be deemed to have also been pressed and rejected by Tribunal---Tribunal in its order had mentioned that no other ground was urged---No presumption, thus, could be raised that any such question was raised before Tribunal on behalf of petitioner to be raised before High Court in appeal---Such was a conscious waiver, which was not required to be considered---Supreme Court repelled plea relating to limitation.  

Pioneer Belting Mills v. Joint Secretary, Ministry of Finance 1983 CLC 784 distinguished.

(b) Central Excises Act (I of 1944)---

----Ss. 35(c) & 36(c)---Special appeal before High Court---Scope---Only question of law arising out of order passed by Tribunal could be raised in appeal before High Court---Where no such question was raised before Tribunal, then same could not be raised before High Court in special excise appeal.

(c) Limitation---

----Question of---Waiver of parties---Duty of Court to take notice of such question---Principles.

If question of limitation is not mixed question of law and fact, then notwithstanding the waiver of such question by the parties, the Court must take notice of question of limitation.

Poineer Belting Mills v. Joint Secretary, Ministry of Finance PTCL 1983 (CL) 24 fol.

(d) Appeal (civil)---

----Grounds taken in appeal, if not urged, would not be deemed to have been pressed.

Ch. Muhammad Farooq, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd July, 2002.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.---The petitioner Company is engaged in manufacturing of cement (Portland Cement) under the control of State Cement Corporation. The petitioner exported Portland Cement to Afghanistan with permission of Ministry of Commerce, Government of Pakistan. The petitioner was served with a show-cause notice, dated 2-5-1999 by Additional Collector, Sales Tax, Custom and Central Excise, Hyderabad, respondent No.3 herein to the effect that on scrutiny of record relating to goods exported the petitioner the Company by land route during the period from 2-4-1998 to 6-11-1998, it transpired that 3500 M. tons Portland Cement was exported to Afghanistan via Chaman without payment of Central Excise duty in terms of rule 13 of Central Excise Rules 1944. It was also stated in the show-cause notice that under provisions of sub-rule (1) of rule 12 of the Central Excise Rules, 1944 read with S.R.O. No.547(I)/96, dated 1-7-1996, issued by the Central Board of Revenue, no rebate of Central Excise duty was available in case of excisable goods exported from Pakistan by land route and that the export of Portland cement by the petitioner Company without payment of central excise duty was in contravention of Central Excise Rules, 1944. Under rule 10 of the ibid rules, the petitioner Company was required to deposit an amount of Rs.58,64,000 as evaded excise duty. The company submitted reply to the show-cause notice and also attended the adjudication proceedings through its representative who conceded before tote Additional Collector of Central Excise that the company was required to pay the central excise duty for the cement exported to Afghanistan and that non-payment of the duty was a bona fide error for want of knowledge of the relevant rules. The Additional Commissioner vide order, dated 24-6-1999 directed that central excise duty to the tune of Rs.53,64,000 be recovered from the petitioner Company. The order of Additional Commissioner was challenged by the petitioner Company through an appeal before the Customs, Excise and Sales Tax (Appellate) Tribunal, Karachi Bench, Karachi which was dismissed by the Tribunal vide order, dated 7-10-2000. The case of the petitioner before the departmental authorities and Tribunal was that supervisory staff of the concerned department did not raise any objection at the time of clearance of goods on the export of Portland Cement to Afghanistan through land route. The Tribunal dismissed the appeal with the observation that negligence of the excise staff would not exonerate the petitioner from the liability of payment of excise duty. The petitioner being dissatisfied with order of the Tribunal preferred a special excise appeal before the High Court of Sindh under section 36(c) the Central Excises Act 1944 and raised the following question of law in the appeal for consideration:--

"Whether the export of cement through land route/without payment of Central Excise duty is made in accordance with Rule 13 of the Central Excise Rule 1944 read with Notification S.R.O. 547(I)/96, dated 1-7-1996.

Whether the Central Excise duty can be recovered from the appellant when the export of the cement has already been made by the appellant?

The appeal was dismissed by a learned Division Bench of the High Court with the following observation:--

"none of the points sought to be raised through questions proposed before us were raised before the Tribunal and consequently there is no finding of the Tribunal on the said points".

The petitioner by filing this petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has sought leave to appeal against the judgment, dated 25-10-2001 passed by the Divisions Bench of High Court of Sindh.

Learned counsel has contended that the legal questions proposed, for consideration in the appeal before the High Court were taken before the Tribunal in the grounds of appeal in a different manner, therefore, High Court was not justified to dismiss the appeal on the technical ground that the proposed questions of law were not raised before the Tribunal. The learned counsel submitted that the substantial question of law if raised in a different manner by use of different language, would be immaterial. The learned counsel next argued that under rule 10 of the Central Excise Rules 1944, the excise duty beyond the period of one year prior to the date of issue of notice would not be recoverable and that in the present case, the consignments, related to the period from 2-4-1998 to 6-11-1998 whereas the show-cause notice was issued on 21-5-1999 therefore, the claim of respondent was barred by time. Learned counsel placing reliance on the case of Pioneer Belting Mills v. Joint Secretary Min of Finance (1983 CLC 784) contended that evasion of duty in the case in hand was not due to misdeclaration, collusion, forgery or fraud rather it was a bona fide error therefore, the period for recovery of such duty under rule 10 of the Central Excise Rules, 1944 cannot be in any case enlarged beyond one year. The learned counsel emphasized that even if the question of limitation was not specifically raised, it was the duty of the Tribunal to take care of the said question and excluded the consignments which were out of the purview of rule 10 ibid.

We have heard learned counsel for the petitioner at length and examined the record made available. It is not disputed that Portland Cement exported by the petitioner to Afghanistan through land route was excisable. The perusal of grounds of appeal filed by the petitioner before the Tribunal, produced by the learned counsel in Court which were not appended with this petition, would show that petitioner instead of raising such question before the Tribunal pleaded that it was not a case of concealment as the central excise staff after verification of the documents made clearance of the consignment and the goods were exported in a lawful manner, therefore, the contention of the learned counsel that the questions of law were raised in a different manner, was not supported by the record. The second question relating to the question of limitation for recovery of central excise duty provided under rule 10 of the Central Excise Rules, 1944, undoubtedly was taken in the grounds of appeal but p was neither pressed before the Tribunal nor was raised before the High, Court for consideration in the appeal filed against the order of the Tribunal under section 36(c) of the Central Excise Act, 1944. It is settled law that only a question of law arising out of the-order passed by the Tribunal under' section 35(c) of the said Act can be raised in the appeal before the High Court under section 36(c) of the Central Excises Act, 1944 and if no such question was raised before the Tribunal, it cannot be raised before the High Court in special excise appeal. The proposition raised by the learned counsel on the strength of law laid down by this Court in Muhammad Buta v. Habib Ahmed (PLD 1985 SC 153) that if the question of limitation is not a mixed question of law and fact, notwithstanding the waiver of such question by the parties, the Court must take notice of the question of limitation, is not disputable. However, in view of the distinguishable facts, the judgment referred to above is not applicable in the present case. The petitioner having taken the question of limitation in the grounds of appeal, did not press the same before the Tribunal and further also did not raise it in the appeal filed by him in the High Court under section 36(c) of the Central Excises Act, 1944. We find that it was a conscious waiver, therefore, was not required to be considered. The contention of the learned counsel relating l to the question of limitation is, therefore, repelled. The learned counsel has not been able to satisfy us from the record that the legal questions raised before the High Court were taken before the Tribunal or that the question of limitation was pressed but was not considered. We do not agree with the learned counsel that the grounds taken in the appeal would be deemed to have also been pressed and rejected by the Tribunal. It is expressly mentioned in the order of Tribunal that no other ground was urged, therefore, no presumption can be raised that any such question was raised before the Tribunal on behalf of the petitioner to be taken before the High Court in the appeal.

For the foregoing reasons, we do not find any substance in this petition and dismiss the same accordingly. Leave is refused.

S.A.K./T-41/SC Leave refused.