HABIB SUGAR MILLS LTD. and anothers vs GOVERNMENT OF SINDH and others

ORDER

' MIR HAZAR KHAN KHOSO, J.---Petitioners M/s. Habib Sugar Mills Limited (C.P. No, 350-K of 1994) and Balochistan Particle Board Limited (C.P. No, 351/94) seek leave to appeal against a common judgment dated 26-10-1994 passed by a Division Bench of High Court of Sindh, Karachi, whereby C.P. No, D-142/90 and C.P.No,D-18/91 filed by them were dismissed. In C.P. No, D-142 of 1990 M/s. Habib Sugar Mills Limited had challenged the authority of respondents levying and collecting tax on export of sugar, bagasse's etc: from their mill situated in District Nawabshah (Sindh) to the Province of Punjab.

2. In C.P. No,18/91 petitioner Baluchistan Particle Board Limited, had challenged notification of the respondents declaring Methanol as alcohol and also levying and collection of export tax on its movement from Karachi (Sindh) to Hub, the Province of Baluchistan. In both the petitions the Division Bench held that levy and collection of. Export duty on Methanol and sugar or products thereof was not infringement of Article 151 of the Constitution of Islamic Republic of Pakistan.

3. Mr. Muhammad Ali Sayeed; the learned counsel for the petitioners vehemently contended that the High Court did not properly interpret the Article 151 of the Constitution. The learned counsel further contended that in C.P. No,D-722 of 1990, CP. No, D-1089/92 and C.P. No,D-2875/92 a Division Bench of the High Court by judgment dated 3-5-1993 held that no excise duty could be levied and collected When Methanol was moved from one Province to another Province under Article 151 of the Constitution of Pakistan. Reliance in that case was placed on the cases reported in 1990 M LD 317 and PLD 1990 Karachi 40.

4. The learned counsel further submitted that vide judgment dated 28-9-1989 the High Court of Sindh in C.Ps. Nos. D-113/86, D-523/85, D-292/86, D-267/83, and D-472/90 had declared that demand of export tax on the goods which were intended to be dispatched outside Province of Sindh to other Provinces was infringement of Article 151 of the Constitution.

5. The learned counsel argued that in Civil Appeals Nos. 513-K of 1990, 514-K of 1990, 693-K of 1990, 53-K of 1991 and 69-K of 1991, the Supreme Court of Pakistan upheld the view taken by the High Court of Sindh. In such view of the matter the learned counsel submitted that on the proposition there are conflicting views of the High Court but its earlier view is upheld by the Supreme Court. This Court, therefore, should examine whether the respondents are barred under Article 151 of the Constitution to levy tax on import of goods from the Province of Sindh to the Provinces of Punjab and Baluchistan. The point is of public importance and needs consideration by this Court. We are, therefore, inclined to grant leave to appeal in both the petitions. Let the appeals be fixed for regular hearing within three months with consent of the learned counsel for the parties. In the meantime the petitioners and the concerned authorities shall keep record of the export of the material from Province of Sindh to other Provinces, but the authorities shall not charge the same. In case the appeals are dismissed they shall pay the export tax along with mark-up chargeable at the rate of Khas Deposit Certificates.