Messrs SALMAN NOMAN ENTERPRISES LTD., LAHORE VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2002 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 2149 (2002)

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.33, 80, 83 & 193‑‑‑S.R.O.458(I)/88, dated 26‑6‑1988‑ C. B. R. Notification No. S.R.O. 1076(I)/95, dated 5‑11‑1995‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.9‑‑Refund‑‑Claim of Exemption Department rejected the claim as the goods were locally manufactured‑‑‑Admitted fact was that the goods were locally manufactured were released under Ss.80 & 83 of the Customs Act, 1969 and were neither provisionally released nor under the orders of Court of law‑‑‑All the three ingredients mentioned in the S.R.O.1076(I)/95, dated 5‑11‑1995 had to be satisfied before claiming any refund‑‑‑Fact that goods were not provisionally released and were manufactured locally being a relevant consideration‑‑‑Complainant was not entitled to any refund.

Nishat Textile Mills's case PLD 1989 SC 222 and PLD 1963 SC 382 ref.

Salman Akram Raja for the Complainant.

Farid Iqbal Qureshi, Deputy Collector, Customs and Masud Javed, Appraiser for Respondent.

DECISION/FINDINGS

The facts in brief are that the complainant imported Ring Spinning Frames (RSF) on which exemption was claimed under S.R.O. 458(I)/88, dated 26‑6‑1988. This claim was refused on the plea that R. S. Fs. were an item manufactured locally clearance of the consignment was, however, obtained by making payment "under protest". It is admitted that assessment under section 80 read with section 83 of the Customs Act stood finalized and, therefore, application for refund under section 33 of the Customs Act (moved on 13‑11‑1998) was refused by the Department on the ground that no refund as such existed on records and the right course was to prefer an appeal under section 183 of the Customs Act. Another undisputed fact pleaded is that on representation made by All Pakistan Textile Manufacturer Association (APTMA), the C.B.R. issued Notification No.1076(I)/95, dated 5‑11‑1995 prescribing customs duty and sales tax @ 30% in those . cases where R. S. F. was imported during 14‑6‑1984 to 30‑6‑1995 and "release of which had been provisionally allowed either in terms of interim order from various Courts of law or by Custom Authorities". The complainant's claim is based on this notification whereas the Department considers that it is a `past and closed transaction' inasmuch as on the day the above notification was issued the complainant's case had already stood processed under sections 80/83 and the goods were locally manufactured. Therefore, they were not entitled to the benefit granted by the above notification.

2. The learned counsel for the complainant insisted that notification dated 5‑11‑1995 granted exemption with retrospective effect to all imports R.S.Fs. during the period 14‑6‑1984 to 30‑6-1995, release of which had been allowed provisionally either in terms of interim order from various Courts of law or by Customs Authorities. It also was considered that although the consignments was cleared after paying the duties demanded, yet the same was "under protest". The learned counsel canvassed that importers identically placed should be given similar dispensation and denial of benefit to the complainant would amount to discrimination. Reliance was placed on a decision by the Supreme Court in re: Nishat Textile Mills PLD 1989' SC 222 wherein term substantial compliance' was explained. Reference was made to an earlier decision vide PLD 1963 SC 382 wherein insistence on mere technicality or procedure was deprecated.

3. The entire case depends upon the applicability of S.R.O. 458(I)/88, dated 26‑6‑1988. The main conditions laid down under this S.R.O. are that goods are not locally manufactured, R.S.F. were imported between the period 14‑6‑1994 to 10‑6‑1995 and release of which had been provisionally allowed either in terms of an interim order from various Courts of law or by the Customs Authorities.

4. In tile present case, the Department rejected the claim as the goods are locally 'manufactured. Besides this the main consideration would be whether the release of such goods has been provisionally allowed as referred to in the S.R.O. It is an admitted fact that the goods were released under sections 80 and 83 of the Customs Act. At no stage, goods were provisionally released by the Customs Authorities or under the orders of any Court of law. All the three; ingredients mentioned in the S.R.O. should be satisfied before claiming any refund.

5. From the facts, it is clear that the condition that the goods were provisionally released, is lacking. The fact that the goods are manufactured locally, can also be a relevant consideration. But even if it is disputed, as one of the main conditions referred above had not been complied with, the complainant is not entitled to any refund.

6. The case is closed.

C.M.A./M.A.K/280/FTO Order accordingly.