SC bench rules: Respondents not entitled to claim refund of special excise duty

ISLAMABAD: The Supreme Court held that the courts are not empowered to strike down a law or its provision on higher ethical notions or on the basis of philosophical concepts and no mala fide can be attributed to the legislature.

A three-judge bench, headed by Chief Justice Qazi Faez Isa, has ruled that on the appeals filed against the judgment of the Sindh High Court (SHC) on Section 3A of Federal Excise Duty Act, 2005. It said that the respondents were not entitled to claim the refund of the special excise duty, which was levied and collected under Section 3A.

Justice Athar Minallah, a member of the bench, authored the judgment, while CJP Faez wrote an additional note, which states; “Law and good practice also requires that judgments be written soon after the hearing has concluded.

SC reserves verdict on Section 3A insertion in federal excise law

This case was heard on 6th December 2023 and, on the same day, it was marked to Justice Athar Minallah for writing the judgment. The judgment took over six months to write, or precisely 223 days. His lordship sent the judgment to me on 18 July 2024 and the very next day on 19 July 2024 I wrote my note thereon and signed it.“

Justice Minallah wrote; “The courts have no jurisdiction or power to rewrite the laws and the Constitution. It is the duty of the courts to give effect to the scheme of representative governance of the State which is the foundation and the edifice of the Constitution is built on it.”

He said this Court has, therefore, laid down stringent and narrow grounds in the context of striking down a law or a provision while exercising the power of judicial review. He held that the burden to prove that the promulgated law is invalid is on the person who challenges its vires. The foundational rule of interpretation is a presumption in favour of constitutionality.

He said that the Court has enunciated the principle that law should be saved rather than be destroyed and that courts must lean in favour of upholding the constitutionality of legislation. The function of legislation is the exclusive prerogative of the legislature.

The wisdom of the legislature to promulgate a law and to achieve a particular object and purpose cannot be questioned and, therefore, it is presumed that laws have been legally, validly and constitutionally promulgated on the basis of its competence.

The promulgated laws or its provisions cannot be struck down lightly and it is the duty of the courts to make every possible effort to reconcile the statute to the Constitution and to strike it down when it becomes impossible to do so.

He stated that in Imrana Tiwana’s case this Court, after surveying its jurisprudence, has summarised the grounds for striking down a law.

Copyright Business Recorder, 2024