(a) Interpretation of statutes---

---- Court has to try to reconcile various provisions of the statute and to give such an interpretation which makes all of them co-existing without rendering any of them redundant and superfluous and the ambiguity, if any, is to be resolved in favour of citizens.

(b) Import Policy Order, 1999-2000---

---Chap.4---Imports and Exports (Procedure) Order, 1999, Chap.8-- NRI Scheme---Imports specifically authorized under Para. 8.1 read with para. 8.1(III)(II) of the Imports and Exports Procedure Order, 1999 and the imports not permissible under para. 8.1(IV)(I) of the said Order operate in different spheres---Neither there 's any contradiction in the two provisions nor there is any overlapping; their areas of- application are distinguishable---Import of Prime Mover/Trucks is permissible under the NRI Scheme read with Import Policy Order, 1999 and the importer of said item had not contravened any provisions of the Customs Act, 1969---Principles.

No provision of the Import Policy Order, 1999 and Imports and Exports (Procedure) Order, 1999 .is rendered redundant or superfluous. There are two categories of banned `items specified in the Import Policy Order, 1999. The first category is of qualified banned items and the other category is of unqualified/absolutely banned items. Because of the expression "unless specifically authorized" contained in Chapter 4 of the Import Policy Order 1999, pertaining to the negative list the ban is qualified, meaning thereby that if import of the said items is specifically authorized, the ban shall be lifted and on account of specific authorization of import the said banned items shall become importable items. The Prime Mover (Trucks) fall within the first category of qualified banned items and on account of specific authorization contained in Para. 8.1 read with Para. 9.1 (III) (II) of the Imports and Exports (Procedure) Order, 1999 the ban is lifted and the import of the truck is permissible in law.

The second category is of unqualified banned items. The ban referred to in Para. 8.1 (IV) (I) of the Imports and Exports (Procedure) Order, 1999 pertains to unqualified/absolutely. banned items and such items in the negative list, which are not otherwise specifically authorized to be imported under any other provision of law. It appears that Para. 8.1 (IV) has been included in the Imports and Exports (Procedure) Order, 1999 as a matter of abundant caution and for clarification that notwithstanding specific authorization contained in Para. 8.1 read with Para. 8.1 (III) of the Imports and Exports (Procedure) Order, 1999, the items specified in Para. 8.1 (IV) shall not be permitted to, be imported. In Para 8.1 (IV) (I) the machinery or equipment import of which has been banned in the Import Policy Order in force, or through orders or instructions made thereunder has not been allowed to be imported under the NRI Scheme. For instance it is provided in Article 2.10 of the Import Policy Order, 1999 that imports under cash shall be permissible from all countries except from Israel or goods originating from this country. Thus, the ban is unqualified and absolute and shall not be permitted under the NRI Scheme, notwithstanding the provision that the Pakistanis residing and working abroad can import new and second-hand machinery against their own earnings. There are several other instances of qualified ban in the Import Policy Order, 1999. For example under Article 2.7 the Importers in Common Bonded Manufacturing Warehouses Schemes, shall be allowed to import all banned items mentioned in Appendix `F' which are actually required for production of export items. Likewise under Article 2.11 (iii) the import of second-hand machinery i.e., sugar plants, cement plants, oil refinery, chemical plants, thermal power plants, hydel power plants, cranes, road rollers (except viberatory road rollers and hydraulic shovels) and machine tools (specified vide Appendix "C"), manufactured locally as provided in CGO 07/98, dated the 24th March, 1998 is not to be imported. However, this ban shall not apply to the projects already initiated and to the cases of relocation of complete high-tech units from abroad on case to case basis. Thus, the imports specifically authorized under Para. 8.1 read with Para. 8.1 (III) (II) and the imports not permissible under Para. 8.1 (IV) (I) operate in different spheres. Neither there is any contradiction in the two provisions nor there is any overlapping. Their areas of application are distinguishable.

The Import of Prime Mover/Trucks is permissible under the, NRI Scheme read with Import Policy Order, 1999 and the importer has not contravened any provision of the Customs Act, 1969.

Akhtar Hussain for Appellant.

Ch. M. Iqbal for Respondent No.2.

Date of hearing: 31st January, 2003.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal under section 196 of the Customs Act, 1969 has been admitted to regular hearing to consider the following question of law arising out of the order, dated 11-6-2002, by the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-II, (hereinafter referred to as the Tribunal:--

"Whether the Customs, Excise and Sales Tax Appellate Tribunal erred in interpreting the provisions of Import and Export Policy Order, 1999-2000?"

The relevant facts giving rise to this appeal are that, the respondent No.2 imported a consignment of old and used Mercedes Dump Truck (two units) and Truck Tractor (prime Mover-two units) from England at the invoiced value of British Pound Sterling 19000 under NRI Scheme. The Home Consumption Bill of Entry was processed under 1st Appraisement System for determination of the declaration made by the importer. After examination of the goods, the shed staff cleared the old and used Dump Truck. The Truck Tractors (Prime Mover) classified under PCT heading 8701.2010 were held to be banned item, according to the list in Appendix "C" of Chapter-4 of the Import Policy Order, 1999-2000. According to custom officials, it was a case of mis-declaration and contravention of Import Policy Order, therefore, it was forwarded to the Adjudicating Officer with a Contravention Report, dated 27-7-2000, for penal action, for violation of sections 16 and 32(1)(2) of the Customs Act, 1969. A show-cause-notice was issued on 5-8-2000. Ultimately order-in-original was passed by the Collector of Customs (Adjudicating Officer) as follows:--

"The offending goods old and used Truck Tractor (Prime Mover) valuing Rs.28,66,800 were confiscated outrighly under clauses (9) and (4) of section 156 (1) of the Customs Act, 1969, read with S.R.O. 1374(1)/98, dated 17-12-1998. However, an option was given to the importer to redeem the spare parts, valuing Rs.10200, against redemption of 50% (fifty per cent.) of the ascertained value of the goods (i.e. spare parts) in addition to the duty and taxes leviable thereon in. terms of section 181 of the Customs Act, 1969 read with S.R.O. 1374(I)/98, dated 17-12-1998. The dutiable value ascertained by the concerned Group/section was approved to be fair and valid in terms of the relevant provision of law.

Therefore, the importer was directed .to make the payment of duty, taxes, fine and penalty within thirty days of the issue of the order,-in-original, failing which, under section 83A of the Customs Act, 1969, the importers in addition to the dues payable as per order-in-original, would also be liable to pay additional duty at the rate of 1-1/2% (one and a half per cent.) per month with surcharge in terms of section 83 of the Customs Act, 1969.

The respondent No.2 feeling aggrieved preferred appeal before the Tribunal contending that no mis-declaration was made as envisaged under section 32(1) of the Customs Act, 1969 and the learned Tribunal accepted the contention that no evidence was available with the Customs Department to establish that the declares value was less and consequently there was no misdeclaration and no offence was committed under section 32(1) of the Customs Act, 1969. It was further contended that according to C.G.O. No.13 of 1979 even if value of the goods is enhanced, the importer shall not: be charged with any violation of I.T.C. or for misdeclaration when any the procedure laid down in the C.G.O. was not followed. The learned Tribunal accepted this contention as well.

The respondent No.2 further objected to the finding in the order -in-original that the import of Truck Tractors (Prime Mover) was not permissible under NRI Scheme. It was contended that, the negative list contained in Chapter 4 of the Import Policy Order, 1999-2000 states that, the import of items specified therein was not permissible, unless specifically authorised and the Second-hand machinery mentioned in Appendix `C', was included in the list, but in spite of this ban the import of Prime Mover was permissible because it was specifically authorised in Para 8.1(III) of the Imports & Exports (Procedure) Order; 1999 and consequently the import of Prime Mover stood excluded- from the purview of negative list.

The departmental representative took plea that Para (III) (ii) of NRI Scheme does not speak of Second-hand machinery. It was further urged that, import of banned items under the Import Policy Order or through orders or instructions made thereunder was not permissible under Para 8.1 (iv) (i) of NR. Scheme. It was further contended that, the Prime Movers were not the trucks.

The learned Members of the Tribunal observed that admittedly Second-hand and reconditioned machinery including Second hand/reconditioned vehicles were not importable under the Import Policy Order, unless specifically authorised. However, under Para 8.1 (III) (II) of the Imports and Exports (Procedure) Order, 1999 dealing with the imports under non-repatriable investment (NRI Scheme), the import of truck is specifically permitted. It was further observed by the Tribunal that in the opening words of Para 8.1, it was stated that new as well as second-hand machinery can be imported under NRI Scheme 'by the Pakistanis residing and working aboard against their own earnings. The learned Tribunal, thereafter dilated upon the principles of the construction of statute as follows:--

"It is a cardinal principle of construction of the statutes that in order to ascertain or discover Legislative intent, the statute must be considered as a whole, just as it is necessary to consider a sentence in its entirely in order to grasp its true meaning. Consequently, effect and meaning must be given to every part of the statute which is being subjected to the process of construction, to every section, sentence, clause, phrase and word.

(15) In Para 165 of the Construction of Statutes by Crawford said that the statute should be construed as whole because it is not to be presumed that the Legislature has used any useless construction upon only a part of it by other portions. Hence, the Court should, seeks the legislative intent construe all the constituent parts of the statute together, and seek to ascertain the, legislative intention from the whole Act, considering every provision thereof in the light of general purpose and object of the Act itself. The Court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase clause or sentence superfluous, unless such a result is clearly unavoidable.

(16) In Para 1676 of Crawford (supra), it is suggested that the Court should seek to avoid any conflict to the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. Consequently, that construction which will leave every word operative will be favoured over one which leaves some word or provision meaningless because of inconsistency."

Adhering to the above principles the learned Tribunal observed that, if provisions of Para (iv) of NRI Scheme are construed in isolation of Para 8.1 of the Scheme they would certainly have the effect sought to be given to them by the department. However, if the Scheme is confined to new machinery only then the words "Government has provided under the NRI Scheme, the facility of importing second-hand machinery" would become superfluous. It was further observed that, Para (iv) (1) is to be construed in the light of Para 8.1 (iii) (ii) and is to be read together and the stipulation "unless specifically authorized" contained in the opening paragraph of the negative list it would mean that, if the import of any item is specifically authorised then it will have effect of excluding the said item from the banned contained in the Import Policy Order, 1999.

After coming to this conclusion the learned Members of the Tribunal considered the objection of the department to the effect that the Prime Movers were not truck and repelled contention.

It was ultimately held that, the import of second-hand truck (Prime Mover) was permissible and that consequently the appellant has not contravened any provisions of the Customs Act, 1969. Ultimately the order-in-original was set aside.

Mr. Akhtar Hussain, learned counsel for the appellant, Collector of Customs has supported the view taken in the order-in-original, to the effect that the import of second-hand vehicles is banned under Article 2.11(iii) Appendix `C' read with Para 8.1 (iv) (i) of the NRI Scheme and therefore, the Tribunal was not justified in holding that by virtue of the specific authorization of import of second-hand machinery under Para 8.1 (iii) (ii) the Import was permissible and it was excluded from the ban contained in the negative list. He has however, conceded that the Prime Movers are trucks.

On the other hand Mr. Ch. Muhammad Iqbal, learned counsel for respondent No.2 has submitted that, the question for consideration is whether Prime-Mover is a banned item, under the Import Policy Order, 1999 or not. He has submitted that, the ban is provided in the negative list contained in Chapter-4 of the Import Policy Order, 1999. According to him the entire controversy depends on the interpretation of the words, "unless specifically authorised", used in the opening sentence of the negative list (Chapter-4) of the Import Policy Order. He has submitted that, the NRI Scheme is contained in Chapter 3 of the Imports & Exports (Procedure) Order, 1999 and in Para. 8.1 (III) it is provided that, "the following machinery has been specifically allowed under the NRI Scheme." In Para. 8.1 (III) (ii) the truck is included in the machinery,' specifically allowed under NRI Scheme. He has submitted that, since the ban contained in the negative list is subject' to the rider clause that the import of the items specified therein shall not be permissible unless specifically authorised and the import of second-hand trucks is specifically authorised under the NRI Scheme therefore the learned Tribunal has rightly held that, the import of second-hand Prime-Mover (Truck) by the respondent No.2 under the NRI Scheme is not included in the negative list.

We have carefully considered the contentions raised by the learned advocates for the parties and the entire relevant material produced before' us including the provisions contained in the Import Policy Order 1999 and the Imports and Exports (Procedure) Order, 1999 and particularly the NRI Scheme contained in Chapter-8 thereof. At the very outset, we would like to observe that, the learned counsel for the appellant have very frankly stated that, the principles of interpretation adhered to by the learned Tribunal are not open to any exception. We are of the opinion that, the point in issue is not free from difficulty because, of the certain apparent contradictions contained in different Paras of the NRI Scheme itself. However, adhering to the principles of interpretation of statute that the Court shall try: to reconcile various provisions of the statutes and should give such an interpretation which makes all the provisions of statute/statutes co-existing without making any provision redundant and superfluous and that the ambiguity, if any, is to be resolved in favour of Citizen/Assessee, we would examine the relevant provision is for deciding the question of law arising out of the order of Tribunal.

In this regard it would, be appropriate to reproduce the various provisions contained in the Import Policy Order, 1999-2000 and Imports and Exports (Procedure) Order, 1999: The negative list contained in Chapter-4 of the Import Policy Order 1999 reads as follows:--

"The import of following items including those specified in the table below, unless specifically authorized, shall not be permissible:---

(E) Second-hand machinery (Appendix "C")."

Item 12 in Appendix "C" read as under:--

"(12) Second-hand/reconditioned Vehicles Chapter 87. Other than dumpers designed for off highway use (8704.(1000), (Chpater-87)."

The NRI Scheme is contained in Chapter-8 of Imports and Exports (Procedure) Order, 1999 contained 8.1 reads as under:--

"8.1. In order to encourage investment in the industrial sector for setting up industries not borne on the list of specified industries, new as well as second-hand machinery can be imported: under NRI Scheme by the Pakistanis residing and working abroad against their own earnings. There will be no restriction on the resale of the machinery after it has been imported."

Para 8.1 (III) (II) provides as follows:--

"Hotel equipment, buses, trucks, power generators, Aircrafts to bolster service sector. Condition of deletion however, shall be observed where applicable."

Para 8.1(iv)(I) read as follows:

"(iv) Machinery/equipment not allowed under NRI Scheme.--(The following machinery and equipment is not allowed under the NRI Scheme:--

(I) The Machinery or equipment import of which has been banned in the import Policy Order in force, or through orders or instructions made thereunder."

After a careful examination of the above provisions contained in the Import Policy Order, 1999 and NRI Scheme contained in Imports and Exports (Procedure) Order, 1999, we find that admittedly the import of Prime Mover (truck tractor) is contained in the negative list given in Chapter-4 of the Import Policy Order, 1999. To this extent there is no difference of opinion between the parties. However, the seed of dissention is sowed in the opening sentence of Chapter-4 of the Import Policy Order, 1999. The contention of the learned counsel for respondent No.2 is that the opening sentence in Chapter-4 of the Import Policy Order; 1999, "the import of following items including those specified in the table below, unless specifically authorised, shall not be permissible, should be read with Para 8.1 and Para 8.1 (III) (II) reproduced above. His contention is that, the ban contained in the negative list is not absolute and the goods specified in the negative list including Appendix `C' are permitted to be imported if specifically authorised. Thus, according to the learned counsel of the respondent No.2, if there is no specific authorisation, the goods specified in the negative list shall be treated as banned items, but shall be deemed to have been excluded from the list of banned items if import is specifically authorised. He has submitted that under Para. 8.1 read with Para. 8.1 (III) (II) of the Imports & Exports (Procedure) Order, 1999, specific authorisation has been accorded for import of new as well as second-hand machinery under NRI Scheme by the Pakistanis residing and working abroad against their own earnings, as is the case of the petitioner. Thus, the import of Prime Mover by the appellant is excluded, from the banned items, with the result that the prohibition contained in the negative list of the Import Policy Order read with Para 8.1, (IV) (I) stands excluded from the ban in the Import Policy Order, 1999.

On the other hand the contention of Mr. Akhtar Hussain, learned counsel for the appellant is that the import of Prime Mover is admittedly banned under Cbapter-4, of the Import Policy Order, 1999 which has to be read with Para. 8.1 (IV) (I) of the Imports and Exports (Procedure) Order, 1999, which provides that machinery or equipment import of which has been banned in the Import Policy Order in force, or through orders or instructions made thereunder is not allowed under NRI Scheme, with, the result that the Import of Prime Mover by the respondent No.2 shall not be permissible in law.

After a very anxious consideration, we are not persuaded to agree with the view of departmental officers and Mr. Akhtar Hussain, learned counsel for the appellant: We find substance in the interpretation placed by Mr. Ch. Muhammad Iqbal, learned counsel for respondent No.2 and the impugned finding of the learned Tribunal. The reason being that if the contention of Departmental Officers and Mr. Akhtar Hussain, learned counsel for the appellant is accepted then the words, "unless specifically authorised" contained in opening sentence of Chapter-4 of the Import Policy Order, 1999 and the provisions contained in Para 8.1 and Para. 8.1 (III) (II) of the Imports and Exports Procedure) Order, 1999, shall become Otiose, superfluous and redundant. It would be manifestly against the established principle of the interpretation of statutes. On the other hand the law as interpreted by the learned Tribunal and Mr. Ch. Muhammad Iqbal, appears to be reasonable and no provisions of the Import Policy Order, 1999 and Imports and Exports (Procedure). Order, 1999 is rendered redundant or superfluous. After very careful examination of all the relevant provisions contained in the Import Policy Order, 1999 and Imports and Exports (Procedure) Order, 1999, we are of the considered opinion that there are two categories or banned items specified in the Import Policy Order, 1999. The first category is of qualified banned items and the other, category is of unqualified/absolute banned items. Because of the expression, "unless specifically authorized" contained in Chapter 4 of the Import Policy Order, 1999, pertaining to the negative list the ban is qualified, meaning thereby that if import of the said items is specifically authorized, the ban shall be lifted and on account of specific authorisation of import the saw banned items shall become importable items. The Prime Mover (Trucks) imported by the appellant fall within the first category of qualified banned items and on account of specific authorization contained in Para. 8.1 read with Para. 8.1 (III) (II) of the Imports and Exports (Procedure) Order, 1999 the ban is lifted and the import of the truck is permissible in law.

The second category, is .of unqualified banned items. The ban referred to in Para. 8.1 (IV) (1) of the Imparts and Exports (Procedure Order, 1999 pertains to unqualified/absolute banned items and such items in the negative list, which, are not otherwise specifically authorized to be imported under any other provisions of law. It appears that Para. 8.1 (IV) has been included in the Imports and Exports (Procedure) Order, 1999 as a matter of abundant caution and for clarification that notwithstanding specific authorization contained in Para. 8.1 read with Para. 8.1 (III) or the Imports and Exports (Procedure) Order, 1999, the items specified in Para. 8.1 (IV) shall not be permitted to be imported. In Para. 8.1 (IV) (I) the machinery or equipment import of which has been banned in the Import Policy Order in force, or through orders or instructions made thereunder has not, been allowed to be imported under the NRI Scheme. For instance it is provided in Article 2.10 of the Import Policy Order, 1999 that imports under cash shall be permissible from all countries except from Israel or goods originating from this country. Thus, the ban is unqualified and absolute and shall not be permitted under the NRI Scheme, notwithstanding the provision that the Pakistanis residing and working abroad can import new and second-hand machinery against their own earnings. There are several other instances of qualified 6aned in the Import Policy Order, 1999. For example under Article 2.7 tile Importers in Common bonded Manufacturing Warehouses Schemes, shall be allowed to import all banned items mentioned in Appendix `F' which are actually required for production of export items. Likewise under Article 2.11 (iii) the import of second-hand machinery i.e., sugar plants, cement plants, oil refinery, chemicals plants, thermal power plants hydel power plants, cranes, road rollers (except viberatory road rollers and hydraulic shovels) and machine tools (specified vide Appendix `C'), manufactured locally as provided in CGO 07/98, dated the 24th March, 1998 is not be imported. However, this ban shall not apply to the I projects already initiated and to the cases of relocation of complete high tech units from abroad on case to case basis. Thus, it is held that the imports specifically authorized under Para. 8.1 read with Para. 8.1 (III) (II) and the imports not permissible under Para. 8.1 (IV) (1) operate in different spheres. Neither there is 'any contradiction in the two provisions nor there is any overlapping. Their area of application is distinguishable as explained by us above.

Consequent to the above discussion, we hold that the learned Tribunal has rightly held that the Import of Prime Mover/Trucks by the respondent No.2 is permissible under the NRI Scheme read with Import Policy Order, 1999 and that the respondent No.2 has not contravened any provisions of the Customs Act, 1969. The impugned judgment of the learned Tribunal is up held and the question of law, reproduced in the opening part of this judgment is answered in negative. The Appeal is, disposed of accordingly.

A copy of this order be sent under the seal of the Court to the Appellate Tribunal as required under section' 196 (5) of the Customs Act, 1969.

M.B.A./C-71/KOrder accordingly.