Central Excises Act (I of 1944)---

----S.3D---Sales Tax Act (VII of 1990), S.3B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Exemption from levy of Central Excise Duty and Sales Tax---Refund of excess payment-- Petitioner had sought declaration that billets be also treated at par with Ingots, in other words billets be also exempted from levy of Central Excise Duty and Sales Tax and billets be levied and brought at par with rate applicable to Ingots---Petitioner had also prayed that authorities be directed to refund to petitioner excess payments made by it towards Central Excise Duty and Sales Tax---Collector Central Excise had conceded that billets and Ingots were same product and billets were liable to same - duty as Ingots---Collector, however had opposed the prayer for refund of amount of Tax on the ground that incidence of Tax had been passed on to the consumers under S.3D of Central Excises Act, 1944 and under S.3B of Sales Tax Act, 1990---Whether or not incidence of Tax had been passed on to the consumer, was a question of fact which could not be investigated in Constitutional petition---Prayer of petitioner with regard to declaration that billets be also treated at par with Ingots and exemption from levy of Central Excise Duty and Sales Tax, was allowed, but with regard to refund of excess payment, petitioner was at liberty to take appropriate proceedings in accordance with law for recovery of the same.  

Ahmed Investment (Pvt.) Ltd. v. Federation of Pakistan and others 1991 PTD 618 ref.

Muhammad Saleem for Petitioner.

Raja Muhammad Iqbal for Respondent No.2.

ORDER

In this Petition, the Petitioner seeks inter alia, the following reliefs:-

"(a) Declare that the purpose of Central Excise Duty and Sales Tax. Billets be treated at par with Ingots, that is to say billets be also exempted from levy of Central Excise Duty and Sales Tax on Billets be levied and brought at par with the rate applicable to Ingots i.e. Rs.375 per M.T.

(b) Direct the Respondents to refund to the Petitioner, the excess payments made by it towards Central Excise Duty and Sale Tax after 1st July, 1989.

(c) Direct the Respondents to refund to the Petitioner a sum of Rs.5,574, 730,50 charged by them towards Central Excise and Sales Tax over and above and or in excess of Rs.375 per M.T."

Mr. Raja Muhammad Iqbal, learned counsel for Respondent No.2, concedes that billets and Ingots are the same product and billets are liable to the same duty as Ingots as held in the case of Ahmed Investment (Pvt.) Ltd. v. Federation of Pakistan and others 1991 PTD 618. He, however, opposes the prayer for refund' of tax on the ground that the incidence of tax has been passed on to the Consumer and under section 3-D of the Central Excises Act, 1944 and section 3-B of the Sales Tax 1990, the burden of proof that the incidence of such duty has not been passed on to the Consumer is on the person collecting the duty. He contends that the Petitioner has not stated in the petition that they have not passed the incidence of tax to the consumers who purchased the steel bars, angles, flats other products manufactured from the Ingots and billets. Whether or not the incidence of tax has been passed on to the consumer by the Petitioner is a question of fact which cannot be investigated in this Petition.

In view of the above, the Petition is allowed in terms of the Prayer (a) of the Petitioner and with regard to prayers (b) and (c) for refund of the alleged tax the Petitioner is at liberty to take appropriate proceedings in accordance with law for recovery of the same.

H.B.T./A-107/KOrder accordingly.