MESSRS METCO SHIPBREAKERS VS PAKISTAN THROUGH THE SECRETARY,
1996 P T D 214
[Quetta High Court]
Before Amir-ul-Mulk Mengal and Javed Iqbal, JJ
Messrs METCO SHIPBREAKERS and others---Petitioners
Versus
PAKISTAN through the Secretary,
Ministry of Finance, Federal Secretariat, Islamabad and others---Respondents
Constitutional Petitions Nos.193, 261 and 262 of 1994, decided on 03/07/1995.
(a) Constitution of Pakistan (1973)---
---Art.199---Constitutional petition---Fiscal matter---Imposition of tax-- Legality----constitutional jurisdiction---Scope---Illegal imposition of tax could be challenged by invoking provisions of Art.199 of the Constitution---Burden would, however, be on petitioner to prove that imposition of such tax was illegal and that same could not have been imposed---Provisions of Art.199 of the Constitution contain no bar that fiscal matter could not be challenged-- Fiscal statutes and regulations, instructions, notifications, bye-laws made thereunder, ant policies formulated for the effective implementation of such provisions are all subject to judicial scrutiny if same are found violative of rights, guaranteed under the Constitution and based on discrimination or in contravention of principles of natural justice.
1991 CLC 1366; 1992 MLD 122; AIR 1952 Mad. 814; AIR 1953 Raj. 180; AIR 1953 Trav-Co 146; AIR 1953 Trav-Co 146; ILR 1952 Trav-Co. 960; AIR 195.1 Raj. 139; AIR 1952 SC 118 and AIR 1952 SC 115 rel.
Ayaz Textile Mills Limited v. Federation PLD-1993 Lah. 194 ref.
(b) Administrative decision--
---- Policy statement by Minister---Binding effect of---Extent---Minister's speech would be of no importance till policies highlighted in such speech were given legal effect through notifications or instructions duly issued by Ministry concerned---No legal coverage having been given to policies announced by Minister concerned, same had not binding effect.
(c) Imports and Exports (Control) Act (XXXIX of 1950)---
----S.3---Import Fee Order, 1993, Preamble---Import Fee Order permitting charging of fee at the rate of 6 per cent ad valorem on C & F Value of goods---Import Fee was charged from petitioner at the time when Letter of Credit was opened by him on 1-6-1994, while merger of import duty was factually made on 1-7-1994 with immediate effect, therefore, it could not be made applicable to transactions which were finalized before 1-7-1994---Import fee was required to be paid at the time petitioner opened his Letter of Credit, question of illegality therefore would not arise in such payment.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art.114---Estoppel---Representation when amounting to estoppel-- Representation, in order to give rise to estoppel, must be a statement which purports to affirm, deny, describe, or which otherwise relates to; any existing fact, circumstance or thing, or any past event---Mere statement of intention to do something in future was not such representation as would give rise to estoppel ---Doctrine of estoppel by representation would only apply to some state of facts alleged to be at the time actually in existence, and not to promises de futuro which were not, binding unless they amounted' to contracts.
Spencer Bower on Estoppel, S.40; Ma Pyu v. Mating Po Chet 39 I.C. 385, 386; Gaura Dei v. Muhammad Yasin Ali Khan 1935 O. 121 = 153 I.C. 585; Maddison v. Alderson L.R. 8 Ap. C. 467; Jorden v. Money (1845) 5 H.LC. 185; Bibhuti Pal Chaudhury v. Maya Deby 65 C.L.J. 590; Tota Ram Jawahir Lal v. Harish Chandar Harkishan 1937 No. 402; Parshottam v. Secretary of State 39 Bom. L.R. 1257; Mst. Gaura Dei v. Raja Muhammad Yasin Ali Khan 10 Luck. 361 = 1935 O. 121 = 153 I.C. 585, 591; Devibai v. Dayabhoy Mod Lal 1926 S. 42 = 89 I.C. 164; 169 and Amulya Ratan Sircar v. Tarini Nath Dey 42 C. 254 = 27 I.C. 235 = 21 C.L.J. 187 rel.
Spencer Bower on Estoppel, S.44; Kaniz Mehdi Begum v. Mirza Rasul Beg 48 I.C. 39; Hindusthan Cooperative Insurance Society v. Secretary of State 56 C. 989 = 1930 C. 230 = 121 C. 737; Doe d. Muston v. Gladwin (1845) 6 Q.B. 953; Jordan v. Money (1854) 5. H.L.C. 185; Mc Evoy v. Drogheda Harbour Commissioners (1867) 16 W.R. 34; Citizens' Bank of Louisiana v. First National Bank of Orleans (1873) L.R. 6 H.L,F. 352; Lala Narain Das v. Lala Ramanuj Dayal 25 IA. 46 = 20 A. 209 (P.C.); Alderson v. Maddison L.R.5 Ex.D.293; Principles and Digest of the Law of Evidence by M. Monir). and PLD 1993 Lah. 194 ref.
(e) Qanun-e-Shahadat (10 of 1984)---
----Art.114---Estoppel---Principle of promissory estoppel could not be invoked against statute.
(f) Imports and Exports (Control) Act (XXXIX of 1950)---
----S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Enforcement of rights which were not in existence at the time when offending enactment was passed---Constitutional jurisdiction could not be invoked to enforce those rights which were not in existence at the time when offending provisions of law were enacted either because those rights were created afterwards and those could not be claimed in respect of facts and circumstances existing prior to the framing of those laws or because remedy to get those rights under the law, as it then stood, had become altogether barred and the matter had been finally concluded---Where fee leviable at relevant time was paid by petitioner without any challenge or protest, same could not be claimed back when afterwards it was abolished---Import fee was, thus, legally charged from petitioner at relevant time when Letter of Credit was opened by him in accordance with law existing at that time and such payment could not be challenged afterwards when the same was abolished.
PLD 1956 Pesh. 77; PLD 1958 Pesh. 54 and AIR 1953 Raj. 180 ref.
Makhdoom Ali for Petitioner (in C.P. No.193 of 1994).
Raja Rab Nawaz, Dy. A: G. for Respondents Nos.l and 2 and Zafar Abbas for Respondents Nos.3 to 5 (in C.P. No.193 of 1994).
Muhammad Aslam Chishti for Petitioner (in C.P. No.261 of 1994).
Raja Rab Nawaz, Dy. Attorney-General for Respondents Nos. 1 and 2 and Zafar Abbas for Respondents Nos.3 to 5 (in C.P. No.261 of 1994).
Muhammad Aslam Chishti for Petitioner (in C.P. No.262 of 1994).
Raja Rab Nawaz, Dy. Attorney-General for Respondents Nos.l and 2 and Zafar Abbas for Respondents Nos.3 to 5 (in C.P. No.262 of 1994).
Date of hearing: 3rd April, 1995.
JUDGMENT
JAVED IQBAL, J.---This is a Constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) on behalf of M/s. Metco Shipbreakers with the following prayer:-
"It is, therefore, prayed in the interest of justice that this Hon'ble Court may be pleased to:
(a) Declare that 6% import fee collected from the petitioner by the respondent No.2 through the respondent No.6 was unlawful and unconstitutional.
(b) Declare that no import fee was payable by the petitioner.
(c) Direct the respondent No.2 to refund the sum of Rs.10,302,312 unlawfully collected from the petitioner as import fee.
(d) Declare that the petitioner is entitled to claim adjustment in the 6% import fee already paid by it against the duties payable by it.
(e) Direct the respondents Nos.l and 3 to 5 to grant adjustment of the import fee already paid by the petitioner against the duties payable by it.
(f) Prohibit the respondents Nos.3 to 5 from refusing to grant the adjustment of import fee against the customs duties payable by the petitioner.
(g) Grant costs of this petition.
(h) Pass any other order which this Hon'ble Court deems just and proper in the circumstances of the case."
2. Briefly stated the facts of the case are that the petitioners are engaged in the business of import of ships for the purpose of scraping at Gaddani. On 28th May, 1994 the petitioner executed a memorandum of agreement with a foreign seller for importing a vessel namely T.T. British Renown (35925) LDT vessel. The payment was made through a letter of credit opened with Habib Bank AG Zurich, Hirani Centre, Karachi, in a sum of Rs.171,705,167/60. The import fee was also realized by the Habib Bank from the petitioner in tune of Rs.10,302,312 on behalf of Ministry of Commerce, and a certificate was issued to that effect. The duty leviable on unserviceable ships imported for the purpose of scraping in Pakistan was as under:---
| Customs Duty | @ | Rs.1375 per LDT |
| Plus Duty on ad valorem basis. | @ | 10% Ad valorem |
| Iqra Surcharge. | @ | 5% |
| Flood Relief Surcharge | @ | 1% |
| Sales Tax | @ | 15% |
| Income-tax | @ | 2% |
The total custom duty including Iqra Surcharge and Flood Relief Surcharge was 16% ad valorem, but the import-fee was also unlawfully realized from the petitioner @ 6% ad valorem. The total burden on these duties and fee on the petitioner was, therefore, not likely to be more, than 22% ad valorem, the amount which was paid by the competitors of the petitioner, who imported their goods on or before July 1, 1994. It is further averred that on 9-6-1994 the Minister Incharge of the Ministry of Finance made a budget speech in the Assembly and the relevant portion whereof is reproduced herein below for ready reference:---
"80. Tariff reform is not a one shot affair. This year we are beginning, a bold beginning a process which will be continued in subsequent years. The Iqra surcharge, the flood relief surcharge, regulatory duties and import licence fee are all being merged into the statutory rates of custom duties. The resultant rates are being rounded off, in most cases, upwards but only marginally. And the maximum effective rates are being reduced from 92 per cent to 70 per cent. We are also fixing the minimum rate at 10 per cent. We are also going to withdraw concession/exemptions progressively so' that those who used to spend time running after exemptions are concessions and not worry about the productivity of their factories will find the door closed. By merger of these para-tariffs and reduction of custom duties, a whole sale revamping and rationalizing of the tariff structure has been undertaken."
The position, which emerged on July. 1, 1994 regarding the Customs Tariff were as under: ---
| Customs Duty | @. | Rs.1375 per LDT |
| Plus Custom Duty Advalorem | @ | 25% Ad valorem |
| Sales Tax | @ | 15% |
| Income-tax | @ | 2% |
The Iqra Surcharge and Flood Relief Surcharge was merged in the Custom Duty alongwith the Import fee and the total amount, thus, arrived at 22% ad valorem "being rounded off... upwards" the total was fixed at 25% ad valorem. The liability of the petitioner was thus increased from 22% ad valorem to 25% ad valorem. At the same time the import fee was abolished and consequently, the competitors of the petitioners who established Letters of Credit after July 1, 1994 did not have to pay any import fee. The ship vessel T.T. British Renown arrived at Gaddani in July 23, 1994 and the petitioner filed Bill of Entry for Consumption on the same date. The petitioner was informed by the Collector, Customs Gaddani and Assistant Collector, Customs Gaddani that it would be liable to pay custom duty @ 25% ad valorem. The petitioner lodged his protest and pointed out that 25% Custom Duty now being claimed included 6% import fee which has already been realized from the petitioner and as such custom duty could not be more than 19%, but no attention whatsoever was paid to this aspect of the matter, and various applications and representations made, but with no result. However, it was on payment of 50% amount of duties and taxes that the petitioner was allowed as per prevalent practice to commence its ship breaking operation. The 50% duty was paid @ 1375 LDT plus 25% ad valorem amounting to Rs.68,052,705 the balance 50% duty amounting to Rs.68,052,705 is yet to be paid. It is the case of petitioner that a sum of Rs.68,052,705 being the balance 50% amount of duty is payable by the petitioner, who is legally entitled for the adjustment of Rs.10,302,312 realized earlier as import fee and consequently he is not liable to pay more than Rs.57,750,393 but on the contrary the respondents Nos.l to 3 and 5 are however, unlawfully claiming a sum of Rs.68,052,705 from the petitioner, hence this petition.
3. It is mainly contended by Mr. Makhdoom Ali, Advocate on behalf of petitioner that the respondents are acting without any lawful authority as such their actions being unlawful are of no legal consequences and besides, that their actions are completely without jurisdiction. It is next contended that Ministry of Commerce could not lawfully recover the 6% import fee from the petitioner in view of the provisions as contained in section 3 of the Import and Export (Control) Act, 1950, whereby only fee in respect of Import Licence can be charged, and after abolition of the office of Controller and Imports and Exports no Import Licence was ever issued in favour of the petitioner, hence the question of recovery 'of 6% Import Fee does not arise. In order to substantiate the said contention it is further argued that the law does not permit charging of any fee except in respect of Import Licence and the provisions of Import Fee Order, 1993 (SRO 594 (1)/93 of July 1, 1993) which permit the charging of fee at the rate of 6% ad valorem on C&F value of goods are in contravention of the provisions as contained in section 3 of Import and Export (Control Act), 1950. It is agitated vehemently that a fee can only be recovered from the Government where it provides a corresponding service to its citizens, but no service whatsoever was rendered to the petitioner, hence the recovery of 6% Import fee is illegal and unconstitutional. It is further mentioned that the Import Licence Fee in excess of 2% ad valorem has already been held unconstitutional by the High Court. (Ayaz Textile Mills Limited v. Federation PLD 1993- Lah. 194). It is next contended that the Minister concerned has mentioned in crystal clear term in his speech made in the National Assembly that 6% Import Licence Fee has been merged in Custom duties and resultantly the petitioner, who had already paid 6% Import Fee is entitled to get adjustment of the said amount in the duties as claimed by Collector Custom, Gaddani. It is also pointed out that the cumulative effect of the action of respondents is that all those competitors of the petitioner whose ships arrived before July 1,1994 were required to pay duties amounting to 16% ad valorem and 6% import fee making a total of 22% ad valorem, and furthermore, that all those competitors of the petitioner who established Letter of Credits after 9th June, 1994 have not paid any import fee and are required to pay custom duty @ 25% ad valorem only. The petitioner had already paid 6% import fee and now he is being required to pay duties at 25% ad valorem discriminatory as the financial burden on the competitors of the petitioner for import fee, duties and taxes ranges from 22% to 25% while the burden on the petitioner is 31% ad valorem and resultantly the goods of the petitioner as against its competitors are rendered totally uncompetitive and the actions of the authorities are discriminatory and in violation of the Constitutional rights guaranteed under Articles 3, 4, 18, 23, 24 and 25 of the Constitution. It is also mentioned that the actions of respondents are in clear violation of the doctrine and principles of promissory estoppel as enunciated by the higher judicial forums.
4. The learned Deputy Attorney-General appeared on behalf of respondents Nos.l and 2 and controverted strenuously the position as canvassed by Mr. Makhdoom Ali Advocate; and challenged the maintainability of the petition on the ground that Fiscal matters including imposition of taxes cannot be dealt with under Article 199 of the Constitution. The learned Deputy Attorney-General further contended that the Letter of Credit was established and Import Fee deposited @ 6% ad valorem in pursuance of the provisions as contained in Import Fee Order, 1993 by the petitioner himself and at his own. The Import Fee was leviable at that time, and as such the question of any illegality or violation of any fundamental right as guaranteed by the Constitution does not arise. The learned Deputy Attorney-General invited our attention to S.R. 587/94 dated 9-6-1994 to substantiate his above-referred two contentions. It is next contended that the Import Fee leviable has not been challenged being unlawful and unconstitutional as such, the relief' sought for cannot be granted. It is also argued that at this belated stage it cannot be agitated that 6% Import Fee was illegal or discriminatory.
5. Mr. Zaffar Abbas, Advocate appeared on behalf of respondents Nos.3 to 5 and adopted the arguments as advanced by the learned Deputy Attorney General as mentioned above.
6: We have carefully examined the respective contentions as adduced on behalf of the parties in the light of available record and relevant provisions of law and various Articles of the Constitution. Let we make it clear at the outset that so far as the maintainability of this petition is concerned that cannot be challenged. We may mention here at this juncture that illegal imposition of tax can be challenged by invoking the provisions as contained in Article 199 of the Constitution, but burden lies on the petitioner to prove that imposition of such tax was illegal and the same could not have been imposed. There is no bar in the Article that fiscal matters cannot be challenged. The Fiscal Statutes, regulations, instructions, notifications, bye-laws made thereunder and Policies so formulated are subject to judicial scrutiny if the same are found violative of the guaranteed right under the Constitution, based on discrimination or in contravention of the principles of natural justice. In arriving at this conclusion we are, fortified by the dictum laid down in the following authorities:---
1991 CLC 1366; 1992 MLD 122; AIR 1952 Mad. 814; AIR 1953 Raj. 180 (DB); AIR 1953 Trav-Co 146 (DB); AIR 1953 Trav-Co 146, ILR 1952 Trav-Co. 960 (DB); AIR 1951 Raj. 139 (DB); AIR 1952 SC 118 and AIR 1952 SC 115.
7. We have also focused our attention to the budget speech of the Minister made before National Assembly and the relief claimed for also revolves around it. In so far as such speeches are concerned, in our view the same are without legal sanctity behind it and the Minister's speech is of no importance till the policies as highlighted in such speeches are given legal effect or cover by way of Notification or instruction duly issued by the ministry concerned. Such speeches are usually motivated by political consideration and there is a considerable difference in between such speeches and that of a policy recognized by some statute or enactment. The possibility of exaggeration in such speeches cannot be ruled out. The pivotal question is whether the points as highlighted in the speech or the Policy intended to be formulated was subsequently given effect by issuance of a notification based on some enactment or statute meaning thereby that whether any legal coverage was given or otherwise. The record is indicative of the fact that no legal coverage was given to all the assurances given by the minister, in his speech. It is also to be noted that under the relevant Rules of Business though Minister is responsible for all matters concerning his department provided that no important decision shall be taken except with approval of Prime Minister. We do not know what happened after the delivery of speech whether it was converted into some Policy duly approved by the Prime Minister and subsequently notified by the Ministry concerned. The learned counsel on behalf of petitioner did not place any material before us in this regard; hence no further comments are called for.
8. The Import Fee was leviable in view of the relevant provisions of Import Fee Order, 1993 at the time of opening of Letter of Credit. It is not the case of petitioner that he could not have been charged the Import Fee at the time when the Letter of Credit was opened, hence the question of any discrimination and violation of any fundamental right guaranteed under the Constitution does not arise. The important question to be determined would be whether the Import Fee was payable when it was paid. It reveals from record that payment was made on 1-6-1994 while the merger of Import duty was factually made on 1-7-1994 with immediate effect as such it cannot be made applicable to all those transactions, which were finalized before 1-7-1994. It is to be noted that all the concerned in business of ship breaking who opened Letter of Credit after 9th June, 1994 or before July 1, 1994 could claim the benefit of merger of the Import Fee and all those ships which entered in the territorial jurisdiction after 9th June, 1994 may also claim such benefit, but those businessmen who had finalized their deals on 1-6-1994 or prior to that are not entitled for such concession. In the prevalent position as then was existing Import Fee @ 6% was realized from the petitioner who opened his Letter of Credit voluntarily and at his own, as the Import Fee was required to be paid at that time which was paid, hence, the question of any illegality does not arise.
8. Before we could examine the plea of "Promissory Estoppel" let we make it clear that the rule is founded on the equitable doctrine that it would be most inequitable and unjust if a person, who by a representation made or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, should be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person, who acted on it" Ms ( Rajana v. Musahib Ali 1935 O. 387 = 155 I.C. 23, 27.) Whether the petitioner had altered his position to his detriment on the basis of speech being question of fact requires some definite "proof' which cannot be produced without leading evidence and while exercising our Constitutional jurisdiction, we are not supposed to solve factual controversies. The Minister's speech can be termed as "representation made on behalf of Government to highlight certain fiscal policies intended to be formulated but it must not be lost sight of that a "Representation must relate to an existing fact or a past event; mere statement of intention or a promise de futuro does not create an estoppel A representation, in order to give rise to an estoppel, must be a statement which purports to affirm; deny, describe, or which otherwise relates to, any existing fact, circumstance, or thing, or any past event. (Spencer Bower on Estoppel, section 40; Ma Pyu v. Maung Po Chet, 39 I.C. 385, 386; Gaura Dei v. Muhammad Yasin Ali Khan, 1935 O.121 = 153 I.C. 585). A mere statement of intention to do something in future is not therefore, such a representation as would give rise to an estoppel. The doctrine of estoppel by representation only applies to representations as to some state of facts alleged to be at the time actually in existence, and not to promises de futuro which are not binding unless they amount to contracts. (Maddison v. Alderson L.R. 8 Ap.C. 467; Jorden v. Money (1845) 5 H.L.C. 185; Bibhuti Pal Chaudhury v. Maya Deby, 65 C.L.J. 590; Tota Ram Jawahir Lal v. Harish Chandar Harkishan, 1937 Nos; 402; Parshottam v. Secretary of State, 39 Bom. L.R. 1257; Mst. Gaura Dei v. Raja Muhammad Yasin Ali Khan, 10 Luck. 361 = 1935 0.121 = 153 I.C. 585, 591; Devibai v. Dayabhoy Moti Lal, 1926 S. 42 89 I.C. 164, 169; Amulya Ratan Sircar v. Tarini Nath Dey, 42 C. 254 = 27 I.C. 235 = 21 C.L.J. 187; Ma Pyu v. Maung Po Chet, 39 I.C. 385. There is an obvious distinction in psychology between a statement of a person intending to act in a certain manner, and an undertaking or engagement so to act. (Spencer Bower on Estoppel, section 44). The former neither creates an estoppel (Kaniz Mehdi Begum v. Mirza Rasul Beg 48 I.C. 39) nor is actionable at law (Hindusthan Cooperative Insurance Society v. Secretary of State, 56 .C. 989 = 1930 C. 230 = 121 C. 737; Kaniz Mehdi Begum v. Mirza Rasul Beg, 48 I.C. 39, except for fraud; whereas the latter is enforceable as contract. Where, therefore, a party cannot succeed against his opponent on the basis of contract (either because there was no contract in fact, or the contract is for any reason unenforceable), and it is therefore, only possible for him` to succeed if he can establish a representation which the other party will be estopped from contradicting, and the statement n which he relies is no more than a promise de futuro, he has always been left without any remedy. (See, e.g., Doe d. Muston v. Gladwin (1845) 6 Q. B. 953; ordain v. Money (1854) 5 H.L.C. 185; Me Evoy v. Drogheda Harbour commissioners, (1867) 16 W.R. 34; Citizens' Bank of Louisiana v. First lational Bank of Orleans, (1873) L.R. 6 H.L.F. 352). Mere expression of itention, though they may excite expectations, do not amount to a contract and are not therefore, enforceable. (Lala Narain Das v. Lala Ramanuj Dayal, 5 IA. 46 = 20 A. 209 (P.C.). This principle is thus stated by Stephen, J.:---
"There is a class of false representations which have no legal effect. These are cases in which a person excites expectations which be does not fulfil, as for instance, where a person leads another to believe that he intends to make him his heir, and then leaves his property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of contract, and may involve greater moral guilt than many common frauds, it involves no legal consequences, unless the person making the representation not only excite the expectation that it will be fulfilled, but legally binds himself to fulfil it, in which case he must as it seems to me, contract to fulfil it."
(Alderson v. Maddison, L.R. 5 Exh.D.293) (See Principles and Digest of the Law of Evidence by M. Monir).
9. No doubt that the Minister's speech has created false hopes and high expectations which could not be materialized but the speech having no legal sanctity behind it at the best it can be declared as "Promise-defuturo" which cannot be enforced by invoking the Constitutional jurisdiction of this Court. The fee was leviable under Import Fee Order, 1993, which was paid accordingly being a legal requirement and it hardly needs any elaboration that there can be no estoppel against the act of legislature. It is bad luck of the petitioner that he could not open his Letter of Credit at appropriate time, and loss if any accrued due to miscalculation, but how can it be compensated by invoking Constitutional jurisdiction of this Court. It is noteworthy that the Import Fee was abolished and not merged in any other duty and the learned counsel failed to convince us, that it was a case of merger and no notification or directive or instruction could be produced in support of the said contention.
10. We have also dilated upon the question whether the Import Licence Fee @ 6% ad valorem on C&F value of goods is ultra vires of the provisions as contained in section 3 of the Import and Export (Control) Act, 1950. It is to be noted that vires of Import Fee Order, 1993 have not been challenged, hence it would be more or less an academic exercise to dilate upon the contention as raised by the learned counsel on behalf of petitioner. In so far as the question of corresponding services is concerned, the learned Deputy Attorney-General has pointed out that various offices are established at different places and necessary services are being rendered to the customers. This question could have been dealt with in case the varies of the relevant laws were challenged. We are, therefore, deliberately withholding our comments on this aspect of the matter, however the authority PL'D 1993 Lah. 194 as cited by the learned counsel on behalf of petitioner does not render any assistance to his cause, but on the contrary it runs otherwise. Two points have been highlighted in the said authority which are as under:--- .
(a) Provision of service in lieu of fee is not a mandatory prerequisite and while discussing the said point it was held as under:---
"There is no cavil with the proposition that generally the fee should be relatable to the services rendered by the statutory functionaries. However, fee may be charged for conferment of a benefit or privilege as well. The import or export of certain items/goods may be allowed or banned by the Government in its discretion keeping in view a number of considerations including the interests of the indigenous industries. If import of certain items is banned then bringing of those items in the country in violation of the law would amount to smuggling entailing penal consequences. Therefore, when the Government chooses to offer the benefit or privilege of import of the said items/goods through the grant of import licence it can charge a reasonable fee for the benefit or privilege offered as well as for services rendered in the field of import and export.
20. The petitioner's learned counsel pointed out that the total budgetary requirements for the offices of the Chief Controller of Imports and Exports; Islamabad and local offices of Controllers and Deputy Controllers of Imports and Exports at Faisalabad, Gujranwala, Multan, Sialkot, Peshawar, Hyderabad, Quetta, and Karachi do not exceed 40 million rupees but the income from the licence fee runs into billions of rupees. They added that every year the Government was saving billions of rupees and could not justify licence fee at the rate of Rs.6%. The data qua the amounts received through licence fee and expenditure for rendering services in the field of import and export is lacking in the present case. Hence, rendering of judgment on the said basis is well-nigh impossible. Moreover, I am not impressed by the argument that the amount required for running the offices of the Chief Controller of Imports and Exports and the local Offices should be made the basis for verdict that the licence fee levied far exceeded the services rendered by the statutory functionaries. The learned DA.-G. rightly urged that the field of import and export was not limited to running of a few offices but encompassed a host of other services at the sea and airports, land routes, employment of officials at the land, sea and air-routes, provision of foreign exchange for -the importers; registration of importers and exporters, trade promotional activities organized by commercial sections of the Pakistan Embassies abroad etc. Moreover, grant of import and export licence is part of a regulatory system meant to secure wider national interests in the field of foreign trade and commerce and indigenous Industry. The principle of quid pro quo (something given or taken as equivalent to another) is relevant in the matter of import or export licence but in its application the value of the benefit/privilege and the services rendered have to be borne in mind. It is not possible to work out with arithmetical exactitude the composite value of the benefit allowed or the privilege conferred and the services rendered in the matter of import/export licence. Hence the mere fact that after deducting the amount spent on rendering service, some surplus amount is collected by - the Government through licence-fee is not sufficient to convert the levy into a tax."
(b) The principle of "Promissory estoppel" cannot be invoked against the Statute and this point was discussed as follows:---
"Thus, the earlier policy of allowing complete exemption from payment of licence fee was not given effect to by the Government. The argument that the Government was estopped from backing out of its earlier assurances/commitments of allowing complete exemptions has no force. It was the statutory authority of the Federal Government to impose the licence fee and it had levied licence fee, which at the relevant time was 6% ad valorem. The principle of promissory estoppel cannot be invoked against the statute."
On the touchstone of the criterion as laid down above, we have examined the entire record to see whether any promise was made by the Government which prompted the petitioner for opening of Letter of Credit and depositing of Import Fee of 6% ad valorem. It reveals from the record that petitioner had done nothing on the promise of Government, and no promise appears to have been made by the Government (Minister alone, does not mean Government). No assurance given by the Government could be pointed out by Mr. Makhdoom Ali, Advocate for petitioner, hence the question of any backing out by the Government does not arise. The opening of Letter of Credit at a particular date was made by the petitioner freely, at his own and without any inducement by the Government as such the consequences irrespective of its nature will have to be faced by the petitioner and the respondents cannot be held responsible in any manner whatsoever. We are afraid the provisions as contained in Article 199 of the Constitution cannot be invoked to "enforce the right which were not in existence at the time when the offending enactment wore passed, either because those rights were created afterwards and they could not be claimed in respect of facts or circumstances existing prior to the passing of the enactments, or because the remedy to get those rights under the law as it then stood had become altogether barred and the matter had been finally concluded". (PLD 1956 Pesh. 77 (DB) = PLD 1958 Pesh. 54 (DB). The fee leviable legally was paid without any challenge or protest cannot be repaid while exercising our jurisdiction under Article 199 of the Constitution, if any authority is required reference can be made to AIR 1953 Rai. 180 (1313).
In the light of w at has been discussed above, it can be safely inferred that the import fee was legally charged from the petitioner at the relevant time when Letter of Credit was opened in view of the provisions as contained in Import Fee Order. 1993, which have not been challenged. Since the facts of C.P. No.261 of 1994, C.P. No.262 of 1994, and C.P. No.193 of 1994 are common and law -points involved are also similar and identical, therefore, all the petitions are disposed of by this common judgment and keeping in view the above discussion being devoid of force merit dismissal. There shall however, be no order as to costs.
AA./548/Q
Petitions dismissed.