(a) Central Excise Rules, 1944‑‑‑

‑‑‑‑S. 11‑‑‑Sales Tax Act (VII of 1990), S. 66‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Claim for refund on basis of principle settled in a subsequent judgment of Supreme Court, whereto petitioner was not party‑‑‑Authority rejected such claim for having been made after statutory period of one year‑‑‑Validity‑‑‑Petitioner had paid duty in accordance with. law at relevant time without any objection‑‑‑Had there been any objection on his part, petitioner would have agitated same, whereupon process of raising of demand on recording of assessment order would have started‑‑‑Principle settled in such judgment of Supreme Court would not be available to petitioner for not being party thereto‑‑‑Matter of petitioner had matured into a past and closed transaction after expiry of statutory period to make application for refund‑‑‑Inadvertence, error or misconstruction contemplated in R.11 of Central Excise Rules, 1944 and S.66 of Sales Tax Act, 1990 referred to inadvertence, error or misconstruction on the part of either taxpayer, or Revenue existing on date of issuance of notice or actual demand‑‑ Petitioner had made payment through an order‑in‑original‑‑‑Findings of Supreme Court recorded subsequently in similar facts could not be made a reason or a basis to allege existence of inadvertence, error or misconstruction on the part of any of the parties at relevant time‑‑‑Such judgment of Supreme Court would be operative from date of announcement and would have no retroactive legal implication‑‑‑High. Court dismissed Constitutional petition.

Colony Thal Textile Mills Ltd. v. Assistant Collector Central Excise and Land Customs, Faisalabad and another PLD 1980 Lah. 377; C.B.R. and others v. Colony Thal Textile Mills Ltd. 1981 SCMR 303; Messrs Pfizer Laboratories Ltd. v: Federation of Pakistan and others PLD 1998 SC 64; Kohinoor Industries Ltd. Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others 1994 CLC 994; Rapidur (India) Ltd. v. Union of India and others 1987 (27) ELT 222; Azizuddin Industries Ltd. v. Collector of Central Excise and Land Customs PLD 1967 Dacca 58; R.R. Textile Mills Ltd. v. Collector of Central Excise and Land Customs and others PLD 1968 Dacca 808; Income Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322; Superior Textile Mills Ltd. v. Federation of Pakistan and others 2000 PTD 399; The Collector of Sales Tax and others v. Superior Textile Mills Ltd. 2001 PTD 1486 = PLD 2001 SC 600; Dr. Tariq Nawaz and another v. Government of Pakistan 2000 SCMR 1956; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Nazir Ahmed and another v. Muhammad Din and another' 2000 SCMR 440; Ch. Ghulam Ghaus v. Saifullah and another 2001 SCMR 159; Chairman Central Board of Revenue Islamabad and 3 others v. Messrs Pak‑Saudi Fertilizer Ltd. and another 2001 SCMR 777; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; (1898) AC 375; Quinn v. Leathem (1901) Ac 495 ref.

(b) Constitution of Pakistan (1973)‑‑‑

---Art. 189‑‑‑Law laid down by Supreme Court would be prospective in operation.

Mst. Attiiyya Bibi Khan and others v. Federation of Pakistan 2001 SCMR 1161; Pir Bakhsh v., Chairman, Allotment‑Committee PLD 1987 SC 145 and Ali Hussain v. Mir Zaman 1987 CLC 127 rel.

(c) Interpretation of statutes‑‑‑

---Amendment in fiscal statutes providing for remedial measures‑‑‑Effect‑‑‑Such amendment would be effective anal applicable only to cases, wherein assessment had not been made by Assessing Officer or where matter was pending in appeal before Tribunal or High Court a; the time of amendment‑‑‑Cases finally determined or having attained finality (i.e. past and closed transactions) could not be re‑opened under amending yaw in absence of express words to such effect.

Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 fol.

(d) Taxation‑‑‑

‑‑‑‑ Judgment of superior Court deciding a legal issue in favour of Revenue subsequently‑‑‑Opening of fresh cases or re‑opening cases of existing tax‑payers on basis of such judgment, who were not party thereto‑‑‑Validity‑‑‑Revenue could not be allowed to open cases against tax‑payers, who had not been served with statutory notices within time prescribed by law‑‑‑Rule of past and closed transactions would be attracted against Revenue in such cases.  

(e) Central Excise Rules, 1944‑‑

‑‑‑‑R. 11‑‑‑Claim for refund of duty‑‑‑Prescribing period of one year for making such claim‑‑‑Necessity underlined.

All budgetary estimates are made on yearly basis, therefore, a number of fiscal steps are taken either to improve or change the fiscal rules and regulations keeping in view the condition of the economy. These fiscal rules, regulations and instructions are relevant, by and large, to a particular assessment or financial year and altogether change their implications after a passage of time. The period of one year laid down for the purpose of claiming of refund needs to be seen in that background as well.

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64 rel.

(f) Sales tax‑‑‑

‑‑‑‑ Incidence of sale tax and excise duty for being indirect levies is invariably transferred to consumer‑‑‑Government, while fixing consumer price does take into consideration payment of excise duty‑ by manufacturer.  

(g) Central Excise Rules, 1944‑‑‑

‑‑‑‑Rr. 11 & 213‑‑‑Central Excises Act (I of 1944), Ss. 35 & 36‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Claim of refund of excise duty‑‑‑Refusal of such claim by Appellate and Revisional Authorities‑‑ Constitutional petition‑‑‑Maintainability‑‑‑Mere non‑availability of any further remedy against impugned order recorded in revision would not be itself make Constitutional petition competent‑‑‑No Constitutional petition could possibly be maintained in absence of jurisdictional fact, which had not been pointed out in impugned revisional order‑‑‑High Court dismissed Constitutional petition.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional Jurisdiction‑‑‑Scope‑‑‑Constitutional petition against order of Tribunal‑‑‑Maintainability‑‑‑High Court in extraordinary jurisdiction would not sit as a Court of Appeal against order of Tribunal recorded by a competent authority observing all procedural rules including rule of natural justice.

(i) Central Excise Rules, 1944‑‑‑

‑‑‑‑R. 11‑‑‑Sales Tax Act (VII of 1990), S. 66‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Rejection of claim for refund of tax‑‑‑Non- filing of appeal against order‑in‑original‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Mere fact that order‑in‑original had become final in absence of any appeal before hierarchy provided for under law as well as refusal of Revenue to make a revision on such ground would not make Constitutional petition competent‑‑‑High Court dismissed Constitutional petition.

Qamar‑ul‑Islam for Petitioner.

Mr. A. Kari\m Malik for Respondents.

Date of hearing: 15 September, 2003.

JUDGMENT

The petitioner is a company limited by shares and is engaged in manufacture of sugar on which it paid central excise duty during the period relevant to the assessment year, 1974‑75. The Federal Government imposed regulatory excise duty on 12‑4‑1975 with effect from 7‑4‑1975 at the rate of Rs.16,00 per CWT on clearance of sugar. It is the case of the petitioner that the regulatory duty on the manufacture of sugar was due from 7‑4‑1975 to 14‑4‑1975 the date on which the sugar mill was closed for the season. However, respondent No. 3 A.C. Gujranwala collected that duty on the entire stock of sugar which was cleared from 7‑4‑1975 till 6‑6‑1975. According to the learned counsel for the petitioner regulatory excise duty was payable only on the quantity of sugar manufactured from 7‑4‑1975 to 14‑4‑1975. In this way allegedly an excess amount of Rs.15,12,880.47 was recovered by respondent No.3 illegally and without lawful authority.

2. It is also the case of the petitioner that during the year 1974‑75 the rate of excise duty was increased from Rs.41,50 per Cwt to Rs.68.72 per Cwt on 6‑6‑1975 with effect from 7‑6‑1975. The enhanced rate, according to the appellant, was applicable only in respect of sugar manufactured after the date of notification while the Revenue charged the increased rate of duty or stock available in the godown on 6‑6‑1975. In this manner an amount of Rs. 50,18,922.95 is claimed to have been collected by the Revenue in excess of the due excise duty.

3. It appears that m the meanwhile a number of manufacturing Unit including Colony Thal Textile Mills Ltd. Mianwali challenged the levy of excuse duty on stock manufactured before the date of such notification through W.P. No. 4246 of 1979 which was decided on 2^nd February, 1980 in favour of the taxpayers. The case was subsequently reported as re: Colony Thal Textile Mills Ltd. v. Assistant Collector Central Excise and Land Customs, Faisalabad and another (PLD 1980 Lahore 377). That decision was upheld by a Division Bench of this Court in ICA No.73 of 1980 on 23‑2‑1980 and was finally maintained by the Hon'ble Supreme Court of Pakistan on 2‑11‑1980 in the case reported as re: C.B.R. etc. v. Colony Thal Textile Mills Ltd. (1981 SCMR 303).

4. After the announcement of that decision by the Hon'ble Supreme Court, the petitioner on 17‑5‑1981 made an application for refund of Rs.69,16,184,59 (which also included a paltry sum of penalty and the amount of duty on sugar in process). That application was rejected by respondent No.3 on 6‑3‑1982 on the ground that refund of amounts paid both as regulatory excise duty as well as the enhanced excise duty in the year 1974‑75 were barred by limitation under rule 11 of the Central Excise Rules, 1944. That rule prescribes a limitation of one year to claim a refund. The appeal filed by the petitioner under section 35 of the Central Excise and Salt Act, 1944 read with rule 213 of the Central Excise Rules, 1944 was dismissed by the Collector (Appeals) (respondent No.2) on 8‑8‑1982 and the revision petition under section 36 of the Act was also dismissed for similar reasons by the Addl. Secretary, Ministry of Finance, C.B.R. Islamabad on 30‑7‑1988.

5. In this Constitution petition the aforesaid three orders recorded by respondents Nos. 1, 2 and 3 respectively on 30‑7‑1988, 8‑8‑1982 and 6‑3‑1982 are sought to be challenged on the ground that rule 11 of the aforesaid Rules was not applicable in the case of the petitioner; that the petitioner having made the payment of duty through inadvertence, error or misconstruction was entitled to its refund; that the rigours of said rule were not applicable in its case and that in any case the claim for refund was made by the petitioner within one year from the pronouncement of the judgment of the Hon'ble Supreme Court of Pakistan in Colony Thal Textile Mills Ltd. decided on 2‑11‑1980; that application of rule 11 to the case of the petitioner will amount to give advantage to the Revenue of its own error and misconstruction of law and that denial of refund of the amounts illegally recovered amounts to depreciation of property without any sanction of law.

6. In support of various submissions learned counsel for the petitioner makes a reference to the aforesaid judgment of the Hon'ble Supreme Court of Pakistan in re: C.B.R etc. v. Colony Thal Textile Mills Ltd. (supra) in which the Hon'ble Court inter alia held that. levy of excise duty was to be determined by the notification which was enforced at the time of manufacture of goods in question. Reference is also made to ratio settled in re: Messrs Pfizer Laboratories Ltd: v. Federation of Pakistan and others (PLD 1998 SC 64) in which the Hon'ble Supreme Court laid down the criteria to be followed in matters of refund barred by limitation given in sections 32 and 33 of the Customs Act, 1969. A judgment of this Court in re: Kohinoor Industries .Ltd. Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others 1994 CLC 994 is also relied upon in which Khalil -ur‑Rehman, J. Interpreted rule 11 of the Central Excise Rules, 1944 in favour of the taxpayers and held that excise duty or tax received in the relevant period was levied and recovered without lawful authority and that claim for refund of excess duty was enforceable in law for the period of three years prior to the date of demand. Accordingly the respondent Revenue was directed to refund the petitioner all amounts of excess duty recovered for the said period of three years. Learned counsel for the petitioner, also relies upon, re: Rapidur (India) Ltd. v. Union of India and others 1987 (27) ELT 222 to contend that doctrine of unjust enrichment may not be applied for the purpose of denying the refund claim of excise duty paid by the manufacturers. Reliance is also placed upon re: Azizuddin Industries Ltd. v. Collector of Central Excise and Land Customs, (PLD 1967 Dacca 58), and re: R.R. Textile Mills Ltd. v. Collector of Central Excise and Land Customs and others (PLD 1968 Dacca 808) and to contend that a High Court in exercise of writ jurisdiction can order refund of the amount realized without authority of law. Lastly it is claimed that since the application for refund was made within one year of the decision of the Supreme Court of Pakistan, dated 12‑11‑1980 in case of Colony Thal Textile Mills Ltd., there was no laches on the part of petitioner.

7. The Revenue on the other hand supports the aforesaid three impugned orders alleging that the application of the petitioner made on 17‑5‑1981 claiming refund of Rs.6916184.59 in the light of the aforesaid judgment of the Hon'ble Supreme Court of Pakistan in re: Colony Thal Textile Mills could not be granted in view of the passing of the statutory period of one year; that Constitutional petition is not an appropriate remedy to inquire into the factual controversy regarding actual production of goods, the amount levied and the collection of excise duty on the goods manufactured. It is also stated that there was no evidence available with the petitioner that regulatory excise duty was collected on the sugar manufactured from 7‑4‑1975 to 14‑4‑1975. It is also disputed that stock of sugar was manufactured earlier to April, 1975. It is also not admitted that a particular stock of sugar was available on 6‑6‑1975 which was manufactured earlier to April, 1975. The alleged amount of excess charge of excise duty at Rs.51,383,310.68 is also disputed on the ground that the petitioner failed to produce any stock register before the departmental authorities and even in the appeal and revisional proceedings. Further that for the purpose of levy of excise duty it is only the date of clearance of goods from the factory premises which is material and not in the date of manufacture. Therefore, the application, dated 17‑5‑1981 is claimed to have rightly been rejected after having been made after a long time and without any proof of claim for refund. It is repeatedly asserted that the petitioner paid excise duty voluntarily without issuance of any notice in that regard and therefore, it cannot claim to have been paid under a threat of closure of factory premises as alleged in the petition. In support of the submissions that payment of excise duty as well as regulatory duty in the present case was a past and closed transaction as far the petitioner was concerned when the matter was finally decided by the Hon'ble Supreme Court of Pakistan, learned counsel for the Revenue relies upon in re: Income Tax Officer, Central Circle II, Karachi and another v. Cement Agencies. Ltd. (PLD 1969 SC 322) in which the Hon'ble Court held that its decision does not affect a past and closed transaction and that on the basis of a judgment pronounced by the Court proceedings finally disposed of in accordance with law prevailing at the time could not be reopened.

8. In the second Constitutional petition which has been consolidated with this petition as common issues are involved, the petitioner is a public limited company and is engaged in. business of spinning and production of yarn and allied products. The present administration claims to have purchased the petitioner‑company namely Sehrish Textile Mills Ltd. Faisalabad from previous owners with all its right and liabilities on 4‑12‑2002. It is stated that in May, 2003 on going through the books of accounts of the company it was found that the company was made to pay tax on purchase of ginned cotton from July, 1996 to August, 1999. That liability was fixed against the petitioner in view of S.R.O. No.1271(I)96, dated 10‑11‑1996 whereby the liability of payment of sales tax was shifted from Ginners to the Spinners. According to the petitioner it was compelled to make "certain payments" as sales tax to the Revenue due to their undue coercion, harassment and misuse of authority. It is the case of the petitioner that the aforesaid S.R.O. dated 10‑11‑1996 was subsequently declared ultra vires of the provisions of Sales Tax, 1990. The judgment so recorded by a learned Single Bench of this Court on 22‑11‑1999 in W.P. No. 20602/99 re: Superior Textile Mills Ltd. v. Federation of Pakistan etc. (2000 PTD 399) was upheld by the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 1094/00 re: The Collector of Sales Tax and others v. Superior Textile Mills Ltd. 2001 PTD 1486 = PLD 2001 SC 600. According to the petitioner after the judgment of the Hon'ble Supreme Court of Pakistan all proceedings taken on the basis of the S. R. O. No. 1271(I)/96, dated 10‑11‑1996, have become null and void and therefore, the petitioner is entitled to receive a refund of Rs.69,54,274 or its adjustment against future liabilities. It is also stated that an application under 45‑A of the Sales Tax Act, 1990 filed before respondent No.3 Collector Sales Tax, Faisalabad was illegally rejected on the ground that he had no jurisdiction to reopen the case and secondly that the petitioner not being a party in the above said Constitutional petition, which was upheld by the Hon'ble Supreme Court is not entitled to the benefits of that judgment.

9. According to the petitioner, the other taxpayers placed in similar situation, having not been burdened with the levy the amount received from it needs to be refunded on the principle enshrined in Article 25 and expounded by the Hon'ble Supreme Court of Pakistan in re: Dr. Tariq Nawaz and another v. Government of Pakistan (2000 SCMR 1956), re: Abdul Samad and others v. Federation of Pakistan and others (2002 SCMR 71). Also refers to the principle settled by the Hon'ble Supreme Court of Pakistan in re: Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312). In support of the maintainability of this Constitutional petition learned counsel relies upon the ratio settled by the Hon'ble Supreme Court in re: Nazir Ahmed and another v. Muhammad Din and another (2000 SCMR 440), re: Ch.Ghulam Ghaus v. Saifullah and another (2001 SCMR 159) and re: Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak‑Saudi Fertilizer Ltd. and another (2001 SCMR 777).

10. The respondent‑Revenue in their reply have stated that the liabilities under the aforesaid, S.R.O. against the petitioner were adjudged through an order‑in‑original, dated 31‑12‑1999 and the impugned show‑cause notice was issued only to implement the order under Sales Tax Recovery Rules 1992 read with section 40 of the Sales Tax Act, 1990. According to the Revenue in absence of any appeal against the aforesaid order‑in‑original it has attained finality and therefore, the petitioner not being a party to the proceedings before this Court as well as the Hon'ble Supreme Court, it cannot take benefit of that judgment which was recorded on the petitioners of as many as 26 spinning mills. It is also the case of the Revenue that in view of the provisions of section 3‑B of the Sales Tax Act, 1990 the petitioner having passed on the incidence of taxation on the purchasers, it cannot claim any refund as the amounts so recovered even if admitted to be the illegal still belong to the Federal Government under the provisions of that section. Also that the petitioner not being a party before the Hon'ble Supreme Court of Pakistan the provisions of section 11 of the Central Excise Rules, 1944 are clearly attracted in its case which makes the claim of refund to be barred by limitation one year. Reliance in support of these submissions is made on re. ITO v. Cement Agencies (supra).

11. The narration of above facts makes two things clear. Firstly, that both petitioners claim refund of taxes paid on the basis of a judgment of Hon'ble Supreme Court of Pakistan despite their not being a party before the Hon'ble Court. Secondly, that a claim of refund was made after the prescribed statutory period of one year. The third reason is peculiar to the second petitioner Messrs Sehrish Textiles. It is that the assessment order framed in respect of the petitioner was never challenged and part payment in execution thereof was made by the predecessor in interest of the petitioner. In this situation, both cases are distinguishable and therefore, the ratio settled in re: Pfizer Laboratories Ltd. v. Federation of Pakistan and others (supra) and re: Kohinoor Industries Ltd. Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (supra) is not available to them.

12. In re: Trustees of the Port of Karachi v. Muhammad Saleem (1991 SCMR 2213) the Hon'ble Supreme Court of Pakistan referred to the dictum settled in (1898) AC 375 and Quinn v. Leathem (1901) AC 495 to affirm the basic principle of law of precedent, as we understand it in common law, that every judgment must be read as applicable to the peculiar facts proved, or assumed to be proved. Further that generality of the expressions which may be found in the judgment are not intended to be expositions of the whole law, that governed and qualified by the particular facts of the case in which such expressions are to be found. In view of their Lordships a case was only an authority for what it actually decided and that it would not be quoted for a proposition that may seem to follow logically from it. Both the petitioners paid taxes and levies in accordance with law or at least their understanding of law at the relevant time without any objection on their part. Had there been any reservation or objection on their party the would have agitated the same whereupon the process of raising of demand on recording of an assessment order would have started.

13. The principle settled by the Hon'ble apex Court in the judgments relied upon was therefore, not available to them as they were not party to it. The matter as far their cases were concerned, matured into a past and closed transaction after the expiry of the statutory period to make an application for refund. According to rule 11 of the Central Excise Rules, 1944 and section 66 of the Sales Tax Act, 1990 refund of levy paid through inadvertence, error or misconstruction can be claimed and made only within a period of one year. The inadvertence, error or misconstruction contemplated in the rule as well as section 66 of the Act refers to the inadvertence, error or misconstruction on the part of any of the parties, the taxpayers or the Revenue, as it existed on the date of issuance of a notice or actual payment of the levy. In both cases there cannot be said to be an inadvertence, error or misconstruction on the part of the petitioners or the Revenue as on the date the payment was made or a demand was raised through an order‑in‑original. The findings of the Hon'ble Supreme Court recorded subsequently though in similar facts cannot be made a reason or a basis to allege existence of inadvertence, error or misconstruction on the part of any of the parties at the relevant time.

14. Also it is a settled proposition that a judgment of the Supreme Court would be operative from the date of announcement and would have no retroactive legal implication as found by the apex Court in re: Mst. Attiyya Bibi Khan and others v. Federation of Pakistan (2001 SCMR 1161). Even in case of amendment in law providing for remedial measures, according to the Hon'ble Supreme Court of Pakistan in re: Commissioner of Income Tax v. Shahnawaz Ltd. and others (1993 SCMR 73) it will be effective and applicable only to those cases where assessment had not been made by the Assessing Officer or where the matter was pending in appeal before the Tribunal or was sub judice before the High Court at the time the amending law was enacted. In the view of the apex Court, cases which had finally been determined or had attained finality i.e. which were past and closed transactions could not be reopened under amending legislation, where there were not express words to that effect in the amending law.

15. This judgment of the Hon'ble apex Court also gives an idea to look at the proposition from another angle. It is that had the two judgments relied upon by the taxpayers been decided favourably to the Revenue, could it serve fresh notices and raise demand against other taxpayers who were not party before the Court and against whom statutory period for raising a demand or serving of notices for re‑opening of the case had expired. The answer is obviously in a big No. The Revenue where the superior Courts decided a legal issue in its favour cannot be allowed to open fresh cases or of those existing taxpayers, who were not served with statutory notices within the time prescribed by law: in that behalf. The rule of past and closed transactions would certainly be attracted against the Revenue in such cases.

16. Even in Messrs Pfizer Laboratories Ltd. (supra) the Hon'ble apex Court observed that a petitioner should not suffer from lashes which may defeat the claim. Further that a party could not claim/refund of an amount paid to a Government functionary under a mistake without any constraint of limitation as that would adversely affect the good governance in financial matters. The judgment of the Hon'ble Supreme Court of Pakistan in re: Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145) gives most valuable reading of the law of precedent, stare decisis and res judicata. As far the law and significance of the precedent is concerned, their Lordships found that the law laid down by the Hon'ble Supreme Court was prospective. In re: Ali Hussain v. Mir Zaman 1987 CLC 127 a single Judge of this Court was considering the effect of declaration made by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan under Article 203‑F of the Constitution of Islamic Republic of Pakistan, 1973 as to the repugnancy of law to the Injunctions of Qur'an and Sunnah. The declaration made by the Court was found not to operate retrospectively so as to impair, affect, destroy or extinguish valuable rights already existing exercised and recognized by Courts.

17. These rules of interpretation are particularly applicable to fiscal matters, and as observed by the Hon'ble Supreme Court in re "Pfizer Laboratories Ltd. v. Federation of Pakistan and others (spura) to good governance in financial matters. All budgetary estimates are made on yearly basis and therefore a number of fiscal steps are taken to either improve or change the fiscal rules and regulations keeping in view the condition of the economy. These fiscal rules, regulations and instructions are relevant, by and large to a particular assessment or financial year and altogether change their implications after a passage of time. The period of one year laid down for the purpose of claiming of refund needs to be seen in that background as well.

18. The reliance of the learned counsel for the petitioner in the first petition on a number of judgments of Indian jurisdiction to support his proposition that doctrine of unjustified enrichment will not be attracted in this case is not relevant. As rightly pointed out by the learned counsel for the Revenue that these judgments cannot be accepted as a rule to be followed because the excise duty as well as Sales Tax being in direct levies their incidence is invariably transferred to the consumer. The claim of the learned counsel that the price of sugar manufactured by the petitioner is regulated by the Government is also not a good reason to hold that incidence of excise duty does not pass on to the consumer. Obviously in fixing consumer price the Government does take into consideration the payment of excise duty by a manufacturer.

19. Lastly, both petitions suffer from similar legal infirmities. In the case of the first petition, the petitioner has exhausted all remedies provided under the law from refusal of refund till the filing of revision before the Secretary, Central Board of Revenue. Mere fact that no further remedy is available against the impugned order recorded in revision does not by itself make a Constitutional petition competent. In absence of a jurisdictional fact which has not been pointed out in the impugned revisional order in the case of the first petition no Constitutional petition can possibly be maintained. This Court in extraordinary jurisdiction does not sit as a Court of appeal against the orders of the Tribunals when these have been recorded by a competent authority observing all procedural rules including rule of natural justice.

20. In the case of second petition as well the order‑in‑original recorded after hearing the parties does not suffer from any jurisdictional fact. At least none has been pointed out. Mere fact that the order‑in- original has become final in absence of any appeal before the hierarchy provided for under the law does not make a Constitutional petition competent. The claim that the Revenue refused to make a revision on the aforesaid ground again does not make a Constitutional petition competent.

21. Both the petitions shall therefore, be dismissed.

22. This petition shall also dispose of W.P. No. 8892 of 2003.

S.A.K./S‑35/L Petitions dismissed.