COMMISSIONER OF SALES TAX (WEST), KARACHI vs MESSRS KRUDDSONS LTD.

1. MUHAMMAD GUL, J.-This is a certificated appeal ;against the order of a Division Bench of the former High Court of West Pakistan, Karachi Bench, dated the llth October 1966, made on a reference under sub--section (1) of section 17 of the Sales Tax Act, 1951 (Act III of 1951) arising out of a claim for refund under subsection (2) of section 27 of the Act by the respondent herein, in the circumstances set out below The respondent herein, is an incorporated company with limited liability and under a licence granted to it under section 8 of the Act is engaged in the manufacture and sale of metal utensils, which, but for any exception under section 7 of the Act are chargeable to sales tax under section 3 of the Act. By Notification No. 3, dated 16-3-1952, the manufacture of metal utensils was exempted from sales tax. However, under what appears to be a bona fide mistake, the respondent paid sales tax amounting to Rs. 5,113 for the year 1953-54, Rs. 13,445 for the year 1954-55 and Rs. 3,795 for the year 1955-56, notwithstanding the above notification. On the discovery of mistake the respondent filed a claim for refund of the aforesaid sums which, was refused by the department on the ground that having collected the amount from the customers in an unauthorised manner, the respondent could not be permitted to retain the same to enrich itself unjustly. The respondent therefore, filed three appeals. In the appeal in respect of the year 1953-54, an Appellate Assistant Commissioner Sales Tax by order dated 30-10-1958 accepted the claim for refund.

2. However, the claim for refund for the subsequent two years was refused by another Appellate Assistant Commissioner of Sales Tax by two separate orders dated 28-2-1959. Against these inconsistent -orders by the two Assistant Commissioners Sales Tax, three appeals were taken to the Income-tax Appellate Tribunal, one of which was by the department against the order for the refund in respect of the year 1953-54 and the other two by the respondent for the enforcement of its claim for refund in respect of the two subsequent years. The Tribunal disposed of the three appeals by a single order dated 24-5-1967 whereby it rejected the appeal of the department and accepted the respondent's two appeals. On a request by the department the following question of law was referred 'to the High Court under subsection (1) of section 17 of the Act for its determination, namely "Whether on the facts and in the circumstances of the case, the assessee is entitled to claim a refund of Rs. 5,113, Rs. 13,445 and Rs. 3,795, respectively for the years 1953-54, 1954-55 and 1955-56, paid to the Government under the provisions of section 27(2) of the Sales Tax Act, 1951 7"

3. The learned Judges of the Division Bench, relying on a precedent from Indian Jurisdiction in the case of Sugar Syndicate, Bultadurgarh v. Excise and Taxation Commissioner, Punjab which for the material purpose was identical to the facts of the instant case, upheld the view taken by the learned Tribunal and answered the above question in the affirmative. However, the learned Judges certified the case to be fit for appeal to this Court, for the case involved law point of general importance relating to the interpreta--petition of a fiscal statute.

4. Mr. S. A. Nusrat, learned counsel for the department did not attempt to assail the view taken by the Tribunal and upheld by the learned Judges of the Division Bench under the dispensation then in force. To resist the respondent's claim for refund, learned counsel, however, relied upon the amendment in the Act subsequent .To the answering of the reference by the High Court as a result of which it was submitted, the respon--dent's claim for the refund in the circumstances of the case was wholly nullified.

5. By section 8(12), Finance Act, 1967 (Act XII 1967) section 33-A was inserted to the Act which by a further amendment by section 8(8) of the Finance Act of 1968 was given retrospective operation.

6. For the material purpose the section as amended reads "30-A. Collection of excess tax, etc.-(1) Every person who has collected at any time before the commencement of this section or collects at any time thereafter any amount by way of tax, whether for misapprehension of the provisions of this Aft or otherwise, which is not payable as tax or which is in excess of the tax shall pay the amount so collected to the Central Government within such time and in such manner as may be prescribed, and in default of such payment shall also pay an additional amount calculated at the rate of fifty rupees for every day after the date before which he is required to pay the amount so calculated.

(2) ------------------------------------------------------------------------------------.

7. The result therefore, is that if any licensed manufacturer or wholesale dealer has collected any amount from his customer on the pretence of collecting , it as sales tax, he is bound to pay the amount to the Federal Government, although in law no tax was chargeable from the customer. The language of the section is clear and needs no elaboration. The only question that needs to be considered is whether the amendments affect this appeal also.

8. Basing himself on the wording of the above provision, learned counsel for the department urged that the Legislature in its wisdom having given the amending statute retrospective operation, it will govern the instant appeal also. In support of his argument, learned counsel referred to monograph 284 at page 580 of the `Statutory Construction" by Crawford, 1940 Edition which reads "While pending litigation may be exempted from the operation of curative statutes, in many instances it is not. But, in either case, however, a number of problems arise. Moreover, there is also considerable confusion in the decisions pertaining to their solutions. For instance, where pending litigation is not exempt, some Courts have held that the curative act will apply even after the case has been appealed, and others that it will not apply to any case wherein judgment has been rendered in the lower Court. Perhaps the best rule is that a final judgment cannot be affected. Or stated conversely, until the judgment is final, it is subject to the power of the Legislature to enact curative legislation."

9. The above statement of law is based on a series of precedents from the American jurisdiction, noticed at the foot of the page. This principle was also followed by this Court in Saeedur Rehman v.

10. Chief Election Commis--sioner, Dacca and others (PLD 1965 SC 157). The facts of that case were remarkable. The appellant in that case was elected as a Member of the Provincial Assembly. His election was set aside by the Election Tribunal on the ground that being a Government contractor at the relevant time he was disqualified under section 116 of the Representation of People Act, 1957 (Act XXXI of 1957), from contesting election to a Legislative Assembly. A writ petition directed against the Tribunal's order under Article 98 of the 1962 Constitution was dismissed by the High Court of East Pakistan. The judgment of the High Court proceeded on an earlier decision of this Court in the case of Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 704). Dissatisfied with the judgment of the High Court the appellant in that case moved a petition for special leave to appeal against the order of the High Court. During the pendency of the petition section 116 of the 1957 Act was repealed by section 2 of the Representation of People (Repeal) Act, 1963 which read as follows :- "(2) Repeal etc.-(1) The Representation of the People Act, 1957 (XXXI of 1957), is hereby repealed, and shall be deemed to have been repealed on the twenty-third' day of March 1962.

(2) No person shall be deemed to be or to have ever been disqualified from being elected as, or from being a member of the National Assembly, or a Provincial Assembly under or by reason of any provision of the said Act, and no election of any person to such Assembly shall be called in question in or before any Court, tribunal or other authority on the ground that such person was so disqualified under the said Act at the time when he was so elected."

11. It is important to point out that in the precedent case on the day when the appellant filed in this Court his petition for special leave by virtue of the law earlier laid down by this Court in Badrul Haque Khan's case, which was correctly applied by the High Court, the appellant in that case stood disqualified to contest the election and having bee-n elected, to retain his seat in the 'Provincial Assembly. Nevertheless, because of the repealing Act which was given retrospective operation, the appellant was held to be entitled to take advantage of the removal of the bar, relieved of his disability ex post facto and declared to have been validly elected. It was observed in that case that there could be no doubt that it applied to the proceedings pending at the time when the Act came into force and this Court had no hesitation to grant the appellant's interest in accordance with law as it existed at the time of the hearing of the appeal, without discussing the law as it existed at the time when the High Court had seizing of the case. It was further observed that once the appeal had been admitted against the order of the High Court, the matter became sub judice again and thereafter this Court had the seizing of the whole case. On this view of the matter, therefore, this Court took into account and gave effect to the repealing Act, notwithstanding the fact that the judgment of the High Court was unassailable according to law as it then stood. In taking the above view this Court relied upon its own two previous judgments viz., The Province of East Pakistan v.

12. Muhammad Mehdi All Khan and others (PLD 1959 SC (Pak.) 387and Election Commissioner v.

13. Sajjad A.I Khan (PLD 1960 S.C 235) and also upon the Privy Council case in Mukarji v. Ram Narain (1963 1 A 47In the Privy Council case, effect was given to an Act passed during the pendency of the appeal which deprived the appellant of the right which he had sought to enforce by filing an appeal and the Judicial Committee found no difficulty in dismissing the appeal because of the change in law.

14. The respondent did not appear to contest appeal. Nevertheless, in the course of argument in the appeal, reference was also made to Works Corporation Housing Society v. Karachi Development Authority (PLD 1969 SC 430) as a possible support for the converse proposition. The facts of that case, however, were materially different. In that case the precise question that fell for determination was whether a notification issued by the Provincial Government could impair the right which had accrued to the petitioner in consequence of an earlier judgment of this Court between the same parties in Works Corporation v. Karachi Development Authority (PLD1969SE391).

15. It is well settled proposition that a notification b~ the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be, expressly so designed.

16. The effect of "final determination" of the .Rights of parties to a litigation was considered by the Privy Council in John Lemm v. Thomas Alexender Mitchell (1912AC 400) and the principle laid down was that the effect of the judgment which in the "absence of appeal (operates as) as a final determination of the rights of the parties" rests on the general principle that a man is not to be vexed twice for the same cause of . Action unless, it is "excluded by the Legislature in explicit and unamistakable terms". In the instant case, the pendency of the certificated appeal in' this Court had destroyed the finality of the High Court's order dated 11-10-1966, and therefore, was hit by the new dispensation in section 30-A of the Act.

17. Accordingly, we accept the appeal and set aside the order of the High Court. We, however, make no order as to costs.