Humayun Khan
PESHAWAR: The divisional bench of Peshawar High comprising of Justice Ijaz Anwar and Justice Syed Arshad Ali directed interim relief to Bara Ghee Mills to provide 50% of leviable rate of Cess import and export goods, on Monday.
The counsel for petitioner Issac Ali Qazi Advocate that Notification dated 06.05.2020 is mala fide as well as without lawful cause and authority.
The counsel informed that respondents in accordance with the interim order dated 16.01.2020 of the apex Court are bound to not collect more than 50% of the impugned leviable rate of CESS.
The writ stating that respondents attempts to charge Cess on Petitioner imports and exports is not only mala fide, misconceived but also against the legitimate expectation of the Petitioner, hence, liable to be read down to extent of Petitioner imports and supply of finished products.
The writ petition further stated that without prejudice of the merit of the case, where KP Finance Act, 2013 was not extended to PATA in terms of Article 247(3) of the Constitution, thus, impugned CESS could not be levied on Petitioner imports / exports for being located in erstwhile PATA for the period 2014 to May 2018 as interpreted by this Honorable Court in case reported as 2016 PTD 203 as upheld by apex Court in case reported 2018 SCMR 939. D: My DocumentsInfrastructure Cess-United Ghee.
The writ added that impugned levy of CESS from petitioner being located in erstwhile Tribal Area could not be levied because Finance Act, 2013 was not extended up to Constitution (25th Amendment) Act, 2018 and upon all because of the provincial government Decision dated 31.01.2019 to maintain the exemption from taxes the erstwhile Tribal Area for five years till 6/2023.
The petition further stated that in pursuance commitment made at the time of passing of 25th Constitutional Amendment denying the exemption from Provincial Cess is against the principle of legitimate expectation.
The writ added that the Cess collected at import stage and other taxes cannot be collected from the Petitioner as the burden of such taxation cannot be passed on to consumer, however, when such levies have not been extended to PATA, therefore, no adjustment of aforesaid taxes paid at import stage is available to the Petitioner, therefore subjecting the Petitioner to such levies shall be illegal and unconstitutional.
The two-member bench granted interim relief to the petitioner on imports and exports of goods shall be subject to 50% of the leviable rate of Cess in accordance with interim order dated 16.01.2020 of the Honorable Supreme Court till final decision of main Writ Petition and adjourned further hearing.
