MESSRS AL-HAMZA SHIP BREAKING COMPANY VS GOVERNMENT OF PAKISTAN
1996 P T D 347
[Quetta High Court]
Before Munawar Ahmad Mirza, C.J. and Iftikhar Muhammad Ch., J
Messrs AL-HAMZA SHIP BREAKING COMPANY and others
Versus
GOVERNMENT OF PAKISTAN through Secretary, Finance & Economic Affairs (Revenue Division), Islamabad and others
Constitutional Petitions Nos. 283 to 288, 296, 321 to 324, 326, 327 and 344 of 1995, decided on 11/12/1995.
(a) Inspection, Valuation and Assessment of Imported Goods Rules, 1994---
----R. 8(2)(c)---Income Tax Ordinance (XXXI of 1979), S.50(5)---Constitutor of Pakistan (1973), Art.199---Constitutional petition---Import tax, demand of-- Prerequisites---Before demanding import tax, verification, valuation and assessment of goods has to be carried out by Appraiser of Customs Department in pursuance of R.8, Inspection, Valuation arid Assessment of Imported Goods Rules, 1994, whereby statutory duty has been conferred upon Authorised Officer to put mark of "Allowed Payment" on having been satisfied that "Bills of Entry" was complete in all respects---In absence of such mark, presumption would be that assessment of duty had not been finalized---Deposit x of customs duty or advance income-tax by petitioners without permission of concerned Authority, however, would be of no significance---Collector Customs or his authorized 0ffiice was bound to compute such tax and collect the same in accordance With provision of S.50(5)(b), Income Tax Ordinance, 1979---Collection of advance income-tax, in terms of S. 50, Income Tax Ordinance, 1979 was based on the amount levied and recovered as customs duty and sales tax.
Al Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905; Abbas Steel Industries Limited v. Collector of Customs (Appraisement), Customs House, Karachi and 3 others 1989 CLR 1463; Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan and others PTCL 1990 CL 457 and Gaya Prasad Pandey and another v. State of Bihar and others AIR 1969 Pat. 311 ref.
(b) Income Tax Ordinance (XXXI of 1979)---
----S. 50(5)(b)---Inspection, Valuation and Assessment of Imported Goods Rules, 1994, R.8(2)(c)---Deferment of Import Duty (On Ships for Scrapping) Rules, 1993, R.4 [as amended by Finance Act (I of 1995)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Import of ship for scrapping---Bills of Entry, advance income-tax at specified rate in terms of S.50(5), Income Tax Ordinance, 1979 and 34 per cent. first instalment of duty was paid on different dates, prior to 30-6-1995, when additional advance income-tax was imposed through Finance Act, 1995---Petitioners claimed that they having paid advance income-tax at specified rate on value of ship increased by customs duty before target date i.e. 30-6-1995, therefore, they were exonerated completely from liability to' pay additional advance income-tax at specified rate after 1-7-1995, on promulgation of Finance Act, 1995-- Effect---Collector, in terms of S.50(5), Income Tax Ordinance, 1979, was required to compute advance income-tax during same period and at the same moment, neither before nor after, in identical method, in which customs duty and sales tax was collected---Advance income-tax was, thus, to be charged on the basis of value of imported goods increased by customs duty, and sales tax, worked out by Customs. Department at the rate which was prevailing at the time of allowing permission to importer to make the payment in public exchequer-- Petitioners without making full payment of first instalment i.e., 34 per cent of import duty, however, had no authority to deposit without permission of Collector, specified advance income-tax on valuation of customs duty which they worked out themselves---Petitioners having not discharged liability to pay advance income tax under provisions of S.50(5), Income Tax Ordinance, 1979 no vested right had accrued to them---Authorities, thus, were within their lawful right to demand advance income-tax at the specified enhanced rate from petitioners after 1st July, 1995, on promulgation of Finance Act, 1995.
(c) Interpretation of statutes---
---- Taxing statute---Interpretation---Statute relating to collection of tax should be interpreted in such a manner so that taxes should be recovered without any complication, and while charging tax there should not be any doubt concerning method adopted to achieve such object---Additionally, tax can only be exacted against tax payer on notifying the amount of tax levied against hint, on the basis of data, so placed before Taxing Authority.
Siraj-ul-Haq Memon and Raja Qureshi for Petitioner (in C.P. Nos. 283 to 288, 327 and 296 of 1995).
Zahid Alvi and Shakeel Ahmed for Petitioner (in C.P: Nos. 321 to 324, 326 and 344of 1995).
Raja Rub Nawaz, D.A.G. and Shaikh Haider for Respondents (in all Appeals).
Date of hearing: 29th November, 1995
JUDGMENT
IFTIKHAR MUHAMMAD CH., J.---In Constitutional Petitions No.283 to 288, 296, 321 to 324, 326, 327 and 344 of 1995, identical points are involved, therefore, we propose to dispose them of, by this common judgment.
It would be appropriate to note relevant facts from C.P. N.o.283/1995 to understand controversy between the parties, as in other petitions except minor details, facts are common. Petitioner imported a Ship, known as T.T. Star South America before 30-6-1995, for the purpose of scrapping at Gadani Bench, District Lasbella. Accordingly Import General Manifest vide No.16/13-6-95 alongwith bill of entry was filed on the same date as per Machine No.00040. It appears that in terms of section 50(5) of the Income Tax Ordinance, 1979 (hereinafter referred as 'Ordinance of 1979') Advance Income Tax, at the rate of 2 % of the value of ship, increased by Customs Duty and Sales Tax vide Tax Payment Receipt dated 28-6-1995, and first instalment of 34% of the duty under "The Deferment of Import Duty (on Ships for scrapping) Rules, 1993 (hereinafter referred to as "the Deferment Rules") amended by Notification dated 11-1-1995 issued by Government of Pakistan, Central Board of Revenue, were deposited on 28-6-1995, in National Bank of Pakistan, Hub Chowki Branch. Before payment of second instalment of 33 % of the duty Finance Act 1995 was promulgated w.e.f. 1-7-1995 in pursuance whereof, paragraph (f) of the First Schedule of sections 9, 10 and 50 appended with, the 'Ordinance of 1979 was amended, and rate 'of 2 % advance Income Tax, was raised to 4 % Therefore, petitioner was called upon to pay additional 2% of the Advance Income Tax. Thus to challenge the demand for Additional Advance Tax, made by respondent, present Constitutional petition has been filed.
In all connected petitions on filing, Bills of Entry, Advance Income Tax at the rate of 2 % as per section 50(5) of the Ordinance of 1979, and 34 % first instalment of the duty was paid on different dates, prior to 30-6-1995.
M/s. Siraj-ul-Haque, Raja Qureshi and Zahid Alvis learned Advocates, appeared on behalf of petitioners and contended that action of Collector, Customs or his Authorised Officer in demanding additional 2 % Advance Income Tax after. 1-7-1995, under section 50(5)(a) of the Ordinance of 1979, is without lawful authority and jurisdiction. Petitioners have acquired a vested right on paying total Advance Income Tax prior to promulgation of the Finance Act. 1995, therefore, in view of 1986 SCMR 1917 AL Samrez Enterprise v. The Federation of Pakistan, 1993 SCMR 1905 Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others, 1989 CLR 1463 Abbass Steel Industries Limited v. Collector of Customs (Appraisement) Customs House, Karachi and 3 others and PTCL 1990 CL 457 Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan and others, petitioners are entitled for Constitutional protection.
Mr. Abdul Hameed Sheikh, learned Advocate, for Income Tax Department, argued that Advance Income Tax is required to be paid by the Importers on the amount computed by the Collector, on the basis of value increased by Customs duty, Sales Tax, which shall be collected by Customs Department, at the rate prevailing at the time of collecting the duty. But at the time of paying second instalment of Duty Advance Income Tax would be chargeable according to rate of 4% prevalent at relevant time therefore Collector Customs, rightly demanded Additional duty 2% under section 50(5)(a)(b) of the Ordinance of 1979 read with Deferment of Import Duty `On Ships for Scrapping) Rules,-1993 (as amended). Learned counsel however, conceded to the filing of Bills of Entry by all-the petitioners, prior to 30-6-1995. Therefore, according to his version, at least on second instalment of duty of 33%, Government is entitled to receive 4% as Advance Income Tax.
Raja Rab Nawaz, learned Deputy Attorney-General, stressed on behalf of Customs Department about non-clearance of Bills of Entry in each case, as number of documents, required to be annexed therewith, so far have not been filed therefore, according to him, the duty and Advance Income Tax, shall be calculated at the rate when clearance of documents is allowed by the Customs Department, therefore, demand of additional 2% by way of income-tax after 1-7-1995, is justified, as per the amendment in law.
It is to be observed that under section 80 of the Customs Act on receipt of Bills of Entry, the Authorised Officer, on behalf of Collector, Customs, will assess the duty on the imported goods, without delay, on having undergone this exercise, concerned officer is also bound to collect Advance Income Tax on the goods, according to formula, prescribed under section 50(5) of the Ordinance of 1979, which reads as under:--
"(5) Notwithstanding anything contained in any law for the time being in force:--
(a) the Collector of Customs shall, in the case of every importer of goods, collect advance tax computed, on the basis of the value of such goods as increased by the customs duty and sales tax, if any, leviable thereon, at the rates specified in the First Schedule, and credit for the tax so collected in any financial year shall, subject, to the provisions of section 53, be given in computing the tax payable by such importer for the assessment year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom section 72 or section 81 applies, the assessment year, in which the "said date", as referred to therein, falls, whichever is later;
(b) the tax under clause (a) shall be collected in the same manner and at the same time as the Customs duty, as if such goods (even though exempt from such duty) were liable to such duty, and all the provisions of, the Customs Act 1969 (IV of 1969) shall, so far as may be, apply accordingly;"
Explanation.--As used in this subsection:
(i) "Value" in relating to any goods means the value as determined under section 25 of Customs Act, 1969 (IV of 1969), as if the goods were subject to ad valorem duty; and
(ii) "Collector of Customs" means a person appointed as Collector, of Customs under section 3 of Customs Act (IV of 1969) and includes a Deputy Collector of Customs, and Assistant Collector of Customs or an officer of Customs appointed as such under the aforesaid section "
On promulgation of the Finance Act, 1995 word ' leviable' has been substituted with the word 'levied' in the above subsection. Petitioners' case is that as they had paid Advance Income Tax at the rate of 2 % on the value of the Ship increased by Customs Duty under section 25-A of the Customs Act and 15% Sales Tax vide SRO. 490(1)/94, dated 9th June, 1994, before 30-6-1995 therefore, they are completely exonerated from liability to pay Additional Advance Income Tax at the rate of 2% even after 1-7-1995 on promulgation of the Finance Act, 1995. Section-50(5)(a)(b) of the Ordinance of 1979, being non- obstante precludes to all other provisions contained in any law, for the time being enforced, concerning computation and collection of Advance Income Tax on imported goods. By its character stick its provides mechanism of charging and collecting of tax. Further expressions used therein are plain and simple, therefore, following principle of Interpretation of Statute, for exploring true spirit of law and also to understand the intention of Legislature. Besides it being physical law, relevant provision have to be construed. Under subsection (5) of section 50 of the Ordinance of 1979, Collector, Customs or his Authorised officer has been empowered to charge Advance Income Tax after computing it on the basis of the value of Imported goods increased by Custom duty and sales tax. The object obviously cannot be achieved without practically working out the exact amount of such tax. In this behalf, it is always required in case of a dispute, to show that a physical exercise for computing the amount of tax was carried out by said authority in accordance with formula, prescribed by Tax Imposing Statute. Language employed in the section indicates that before exacting the tax, the collector is required to have before him amount of customs duty and sales tax, which has been demanded by the Customs Department, according to bill of entry if it has been accepted to be complete and correct, according to prevailing law. .
Raja Rab Nawaz, learned Deputy Attorney General, stated that since Bills of Entry in instant petitions have not been cleared, as requisite documents have not been supplied by importers, therefore, legally it was not practicable for Custom Authorities to work out actual amount of Advance Income Tax basing on Customs Duty etc. It is to be noted that according to Standing Order, dated 30th January, 1990, issued by the Collector of Customs, Gadani Customs House in the matters pertaining to the import of ships for scrapping, number of documents are required to be attached therewith. Relevant para. from the order, for convenience is reproduced below:--
Boarding/rummaging of the ship.--(i)........
(ii) .
(iii) The importer/clearing agent while filing bill of entry shall declare, all the particulars of the vessel under clearance and any additional cargo on x board the vessel. The importer/clearing agents shall also declare all the details of necessary/unnecessary tackle/stores and such other items alongwith their value, PCT heading and rates of Customs duty and sales tax leviable thereon on the bills of entry and get- the same manifested provided it is accompanied by the following document's:-
(a) Builders plan or capacity plan or builders certificate evidencing LDT, Trim and Stability Book.
(b) Original Commercial Invoice.
(c) Memorandum of Agreement.
(d) Bill of Sale.
(e) Import Licence.
(f) Letter of Credit.
(g) Photo Copy of Lloyds Register."
Above practice is going on since long which facilitates the Custom Department to compute the Custom Duty on the ships, according to law. In above context learned Deputy Attorney-General placed on record a detailed statement to support his plea, which has not been contradicted by petitioners on filing rejoinder to counter-affidavits.
It is to be seen that before demanding import tax, verification, valuation and assessment of the goods is to be carried out by the Appraiser of the Customs Department in pursuance of rule 8 of the Inspection, Valuation and Assessment of Imported Goods Rules, 1994. Rule 8 (2)(a)(b)(c) being relevant is reproduced below:--
8.-- (1) Nothing .... .
(2) The simplified procedure as described below shall be followed in respect of goods for which the PSI Company has issued a CRF:--
(a) The Customs at each Custom House or Station shall accept the bit of entry in respects of goods subject to pre-shipment inspection only if it is accompanied with the original CRF issued by the PSI Company alongwith other requisite documents for registration under section 79 of the Act.
(b) The Customs shall verify the corrections of the bill of entry in all respects and ensure that the particulars of the bill of entry are in complete harmony with the supporting documents.
(c) In case the Customs is satisfied that the bill of entry is complete and the customs duties and other taxes have been worked out in accordance with the CRF issued by the PSI Company, the bill of entry shall be allocated the registration number with date and marked "Allowed Payment" and returned to the designated authorised agent o~ the importer under second appraisement system:
Provided that where the value of such goods determined under section 25-B of the Act is higher than the value of goods specified in CRF, the duty shall be levied at such higher value. In case, the Customs is of the view that the entries made in the CRF or in the bill of entry are not correct, the bill of entry shall be referred to the designated committee of resolution of the disputes if not agreed by the importer and the situated bill of shall be processed under the first appraisement system specified in section 80 of the Act."
Rule 2(c) of Rule 8-confers statutory duty upon authorised officer W19ut mark of "Allowed Payment" on having been satisfied that Bills of Entry is complete in all respects. It would mean that in absence of such mark, it will be deemed that assessment of duty has not been finalized. In the instant case, we failed to notice that customs duty/sales tax was in accordance to said provision, obviously for the reason that so far customs department had not expressed its satisfaction about the declaration made by petitioners in the Bills of Entry.
It may be seen that original or certified copies of the Bills of Entry were not produced, despite directions of Court, 'as such, petitions will be decided on the available material. However it is to be observed that deposit of customs duty or Advance Income Tax by the petitioners without permission of concerned Authority has no significance.
Now we would proceed to examine that presuming Customs Department had allowed the payment of duty and sales tax on satisfying that Bills of entry were in order, then what would be the procedure to compute Advance Income Tax. It may be seen that Collector Customs or his authorised officer is bound to compute such tax and collect it in the same manner and at the same time as provided under section 50(5)(b) of the Ordinance of 1979. In view of the plain language of the above section, collection of the Advance Income Tax is based on the amount levied and recovered as Customs Duty and Sales Tax.
Amongst petitioners, most of them had not paid total first instalment of 34% of Customs Ditty and Sales Tax before 30th June, 1995, in accordance with Rule 4 of the Deferment of Import Duty on Ships for Scrapping Rules, 1993 (as amended).
Since a special mode of making payment duty has been adopted by petitioners therefore, Advance Income Tax shall also be collected in the same manner and at the same time as clause (b) of subsection (5) of section 50 of the Ordinance of 1979, provides. It is deemed appropriate to reproduce here-in- below the plain and simple meaning of expression. 'sane manner' from the ,Black's Law Dictionary, 5th Edition
Same Identical, equal, equivalent. The word "same" however, does not always mean "identical". It frequently means of the kind or species, not the specific thing. When preceded by the definite article, means the one just referred to.
Two offences are "the same" under the double jeopardy clause of the Federal Constitution unless each requires proof of an additional fact that the other does not. Ex parte Joseph Tex. Cr.- App.; 558 S.W. 2d 891, 893. See also Jeopardy; Same offence.
Manner: A way, mode, method of doing anything or mode of proceeding in any case or situation. See also Custom and Usage.
Whereas expression ' at the same time' has been interpreted in the case of Gaya Prasad Pandey and another v. State of Bihar and others AIR 1969 Pat. 311. Relevant para therefrom reads as under:---
"In my opinion, Rules 6 and 7 are not relevant to the issue, nor they support in any way the argument advanced by Mr. Verma. The expression 'at the same time', if we refer to Shorter Oxford English Dictionary, third edition, means "during the same period, at the same moment, not before or after". In my view this is the correct meaning of the expression used in the said rule. This also appears to be the intention of the Rule-making authority. Had, it not been so, in proviso (iv) they would have clearly mentioned that the officer promoted shall rank senior to the officers recruited, although substantively appointed on later date. "
The above meanings persuaded us to hold that the Collector shall compute Advance Income Tax during same period and the same moment, neither before nor after, in the identical method, in which customs duty and sales tax was collected. It is to be seen that relevant parts of statute relating to collection, of tax should be interpreted in such a manner so that taxes are recovered without any complication, and while charging the tax there should not be any doubt concerning method adopted to achieve the object. Additionally tax can only be exacted against the tax payer on notifying the amount of tax levied against him, on the basis of data, so placed before the concerned authority.
As such, we are persuaded to hold that Advance Income Tax is to be charged on the basis of value of imported goods increased by Customs. Duty and Sales Tax, worked out by the Customs Department at the rate which was prevailing at the time of allowing permission, to Importer under Rule 2 (c) of the Inspection Valuation Assessment Rules, 1994, to make the payment in public exchequer.
Learned Deputy Attorney-General placed on record statement containing details of amounts paid by petitioners against first instalment of 34% under Deferment Scheme before 28th October, 1995. A perusal of which indicates that petitioners even did not make full payment of first instalment of duty. Relevant entries from the said statement reads as under:---
| S. No. | Name of Importer | % of duty paid up to 30-6-1995 Custom Duty. | Sales Tax |
| 1. | M/s. AI-Hamza Ship Breaking Co. | 13.6 % | 30% |
| 2. | M/s. Ahmad Meritime Breakers | 31.70 % | 25.06% |
| 3. | M/s. Abdul Sattar Noor Muhammad & Co. | 19.57 % | 40.87 |
| 4. | M/s. Metco Ship Breakers. | Nil. | Nil |
| 5. | M/s. Dewan Sons | 19.34 % | 21.61 |
| 6. | M/s. Sadaf Enterprises | 33.57 % | 38.39 |
| 7. | M/s. Imran Ship Breaking Co. | Nil. | Nil. |
In the rejoinders filed to counter-affidavits of Customs Department, petitioners had not controverted to above factual position. Thus it is decided that petitioners without making full payment of first instalment Le. 34 " of the Import Duty had no authority to deposit without permission of Collector, 2% Advance Income Tax on the valuation of customs duty which they worked out themselves. As payment of customs duty, sales tax under Deferment Scheme is relatable to the computing and collecting of Advance Income Tax, therefore petitioners are liable to pay such tax at the rate which will be prevailing when remaining amount of the duty shall be paid by them.
In view of above discussion it is held that Advance Income Tat shall be computed according to the method, prescribed under section 50(5)(a)(b) of the Ordinance of 1979 and collection of the tax shall be made on the amount of duty which actually had been paid by Importer under the sanction of Tax Levying Authority i.e. Collector Customs at the rate prevailing at the time when such amount is paid and there is no concept of self-execution of above provisions. Under the circumstances, official respondents were within their lawful right to demand Advance Income Tax, at the rate of difference of 2% from petitioners after 1st July, 1995, on promulgation of Finance Act, 1995. Because petitioners have not fully discharged the liability to pay Advance Income Tax under the provisions of section 50(5)(a)(b) of the Ordinance of 1979, therefore, no vested right had accrued to them, and the judgments cited at Bar on behalf of petitioners are of no help to them.
For the above discussion, petitions are dismissed. However, we leave the parties to bear their respective costs.
A.A./571/QPetitions dismissed