2004 P T D 901

[Karachi High Court]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

Messrs HASHWANI HOTELS LIMITED through Executive Director

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 5 others

Constitutional Petition No. D‑615 of 1996, decided on 12/12/2003.

(a) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss.5, proviso II, 6 & 15‑‑‑Customs Act (IV of 1969), Ss.30, 79 & 104‑‑-Finance Act (IX of 1996), Preamble‑‑‑S.R.O. 212(I)/91, dated 14‑3‑1991 [as amended by S.R.O. 367(I)/91, dated 7‑5‑1994]‑‑ Notification No. SL No.65/96(A) dated 6‑4‑1996‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Sales tax exemption‑‑‑Change in rate of tax‑‑‑Promissory estoppel, principle of‑‑ Applicability‑‑‑Home consumption‑‑‑Provision of IInd proviso to S.5 of the Sales Tax Act, 1990 [as it stood prior to 1st July, 1996] did cover the presentation of Bills of Entry under S.104 as well as S.79 of the Customs Act, 1969 and the applicability thereof to the Bill of Entry under S.79, was excluded by the amendment introduced by Finance Act, 1996 only with effect from 1‑7‑1996‑‑‑If the intention of the Legislature had been to apply it retrospectively it could have done it by expressly stating so‑‑ Provision of IInd proviso to S.5 of the Sales Tax Act, 1990 as it stood during the period relevant, in the present case, was fully applicable and consequently the exemption from payment of sales tax on the import claimed by the importer was not available‑‑‑Action of the Department charging the sales tax on the said import was not open to any exception‑ When the Bill of Entry in the present case was filed amendment was still available but the importer could not avail the same because the requirements for availing the exemption could not be fulfilled by the importer before 11‑4‑1996, while the exemption was already withdrawn, with effect from 6‑4‑1996 and the provisions contained in IInd proviso to S.5 of the Sales Tax Act, 1990 had become operative‑‑‑Doctrine of promissory estoppel, in circumstance, was also not attracted‑‑‑Principles.

For the purpose of determination of the rate of import duty under the Customs Act, the relevant date is the presentation of Bill of Entry for home consumption under section 79 of the Customs Act. However, second proviso was added to section 30 of the Customs Act, by Finance Ordinance, 1979 pertaining to the Bill of Entry under section 104 of the Customs Act, providing that if the duty is not paid within seven days of the Bill of Entry being presented, the value and rate of duty applicable would be the date on which the duty is actually paid. There is no ambiguity in this proviso, that, it is applicable to the Bill of Entry presented under section 104 of the Customs Act, 1969 only and was not applicable to the Bill of Entry presented under section 79 of the Customs Act. Although it is provided in section 6 of the Sales Tax Act, that the tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969, but this provision shall not change .the nature of tax and therefore, except the provisions pertaining to the collection of sales tax, no other provision in the Customs Act, is attracted and particularly the provisions pertaining to the assessment or exemption of sales tax ‑shall still be dealt with under the provisions of the Sales Tax Act.

The issue in the present case pertained to the exemption under the Sales Tax Act and a simple question of collection of the sales tax as customs duty was not involved, therefore, the provisions contained in this behalf in the Sales Tax Act, 1990, pertaining to the chargeability and rate of tax, shall be applicable as in force at the time of import in this case. As already observed, so far as the question of the date of determination of the rate of import duty under the Customs Act was concerned, it was the date of presentation of the Bill of Entry for home consumption. Similar provisions were contained in section 5 of the Sales Tax Act. Second proviso to section 30 of the Customs Act however, provided that in respect of goods for the clearance of which a Bill of Entry for clearance had been manifested under section 104 and duty was not paid within 7 days of the Bill of Entry being manifested, the rate applicable would be the rate of duty on the date on which duty was actually paid. The proviso is in the nature of exception to the general principle contained in section 30 of the Customs Act. Thus, it places a limitation upon the effect of general principle, contained in section 30 of the Customs Act and serves the purpose of qualifying the applicability of the general rule to the Bill of Entry presented under section 104 of the Customs Act. Similar provision is contained at present in second proviso to section 5 of the Sales Tax Act.

A comparison of the proviso as existing at present with the proviso as existed till 30th June, 1996 shows that the words "under section 104 of the Customs Act" were inserted by Finance Act, 1996, with effect from 1‑7‑1996. The result was that prior to the amendment made by Finance Act, 1996, the Second proviso to section 5 was applicable generally to the Bills of Entry whether presented under section 79 or section 104 of the Customs Act, 1969. Section 5(b) of the Sales Tax Act, deals with the charge of sales tax and under clause (i) thereof the rate as is in force on the date of presentation of Bill of Entry under section 79 of the Customs Act, shall be applicable and in the case of Bill of Entry under section 104 similar provision is contained in clause (ii). Under section 30 of the Customs Act, similar provisions were in force at the time of import and presentation of the Bills of Entry in this case with the difference that the second proviso which was inserted by Finance Ordinance, 1979 placed the classification/limitation for payment of customs duty within 7 days of the presentation, of Bill of Entry under section 104 only. The proviso was not applicable since very inception to the presentation of Bill of Entry under section 79 of the Customs Act. However, the second proviso to section 5 of the Sales Tax Act, 1990 enacted initially, was in general terms meaning thereby, that it was applicable to the Bill of Entry presented under section 79 of the Customs Act, as well as section 104 of the Customs Act. It was only after amendment inserted by Finance Act, 1996 with effect from 1st July, 1996 that the second proviso was made applicable to the Bill of Entry presented under section 104 of the Customs Act, thereby excluding the applicability of the proviso to the Bill of Entry presented under section 79 of the Customs Act, 1969. In the present case, the Bill of Entry was presented on 15‑2‑1996 and the sales .tax was charged on 13‑4‑1996 when the exemption was already withdrawn with effect from 6‑4‑1996 under the notification dated 4‑4‑1996.

Amendment has been enacted by Finance Act, 1996 with effect from 1‑7‑1996, but the amendment has been made with retrospective effect, and therefore, the law as it stood up to 30th June, 1996 envisaged that the second proviso to section 5 was applicable to the Bills of Entry presented under section 104 of the Customs Act, as well as to the Bills of Entry presented under section 79 of the said Act. Therefore, it cannot be said that the law as it stood up to 30th June, 1996 provided any immunity to the Bill of Entry presented for home exemption under section 79 of the Customs Act from the condition prescribed in the second proviso to section 5 of the Sales Tax Act, 1990.

The Courts are required to interpret and apply the law as they exist at a particular point of time relevant for consideration and not on the basis of law as it ought to be or ought to have been. A transaction governed under the Sales Tax Act, 1990 is to be considered in the light of provisions contained in the Sales Tax Act and not on the basis of a law contained in another tax statute, in the present case the Customs Act. The sales tax and customs duty although belong to the species of indirect tax but they are not the same and operate in their distinct and separate field in accordance with the provisions contained in the relevant statutes. On the basis of analogy in any other statute the clear language of a law cannot be stretched so as to bring it in conformity with the provisions contained in another statute or in consonance with the amendment subsequently made with prospective effect.

In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax, There is no presumption as to a tax. Nothing is to be read in, nothing is to be employed. One can only look fairly at the language used.

Thus, the applicability of second proviso to section 5 of the Sales Tax Act to the present case cannot be resorted to merely on the basis of intendment or presumption. The principle of purposive interpretation cannot be employed also for the reason that the principle of purposive approach is to be resorted to in the case, where there is any ambiguity. However, when the language of law is very clear, it is to be followed.

While interpreting the taxing statute the Courts must look to the words of the statute' and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency.

While finding out intention of the Legislature language of the law is to be seen and if the intention is clear, from the language used nothing else is to be done.

If the Legislature has not sufficiently expressed itself Court has no duty to act for it, for Court is concerned with what it lays down and not with what it has only in mind, but once it has been articulate enough Court does no more than give effect to the intention that it has succeeded in expressing. That intention may be expressed in faulty language, in very faulty language, in extremely faulty language. This is of no consequence as long as there is no doubt as to the intention. A draftsman's mistake as long as it relates to the form in which the legislative intent is expressed and not to the substance of it, is‑of no effect. Of course once an element of doubt as to the intention of the Legislature enters the field considerations otherwise irrelevant may all become relevant.

In a statute of this nature if there is a case, which is not covered by the words of the statute are interpreted according to their natural meaning, that can only be cured by legislation and not by any attempt to construe it benevolently by the Courts.

The consideration of hardship or injustice does not weigh with the Courts while interpreting the statute.

The second proviso to section 5 of the Sales Tax Act, 1990, as it stood prior to 1st July, 1996, covered the presentation of Bills of Entry under section 104 as well as section 79 of the Customs Act and the applicability thereof to the Bill of Entry under section 79, was excluded by the amendment inserted by Finance Act 1996 only with effect from 1‑7‑1996. If the intention of the Legislature had been to apply it retrospectively the Legislature could have done it by expressly stating so. The second proviso to section 5 of the Sales Tax Act 1990, as it stood during the period relevant in the present case was fully applicable and consequently the exemption from payment of sales tax on the import claimed by the petitioner was not available. Thus, the action of the Department charging the sales tax on the import made by the petitioner was not open to any exception.

Principle of promissory estoppel is not attracted for the reason that at the time of filing of Bill of Entry the amendment was still available but the importer could not avail the same because the requirements for availing the exemption could not be fulfilled by the importer before 11‑4‑1996, while the exemption was already withdrawn, with effect from 6‑4‑1996 and the provisions contained in second proviso to section 5 of the Sales Tax Act became operative.

Abbas Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463; Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan 1990 PTD 29; Messrs English Biscuit Manufacturers Ltd. v. The Assistant Collector, Central Excises and Land. Customs, Landhi Division, Karachi 1991 PTD 178; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Messrs Nadeem Electronics (Pvt.) Ltd. v. Collector of Customs, Central Excise and Sales Tax 1999 PTD 1912; Cape Brandy Syndicate v. I.R. (1921) 1 KB 67; Canadian Eagle Oil Co. Ltd. v. The King 27 TC 205; Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax 1971 PTD 200; Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335 and A. Ghafoor v. The State PLD 1965 Quetta 10 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Court is required to interpret and apply the laws as they exist at a particular point of time relevant for consideration and not on the basis of law as it ought to be or ought to have been.

(c) Interpretation of statutes‑‑‑

‑‑‑‑Clear language of a law cannot be stretched on the basis of analogy in any other statute so as to bring it in conformity with the provisions contained in another statute, or, in consonance with the amendment subsequently made with prospective effect.

(d) Interpretation of statutes‑‑‑

‑‑‑‑Taxing statute‑‑‑One has to look merely at what is clearly said; there is no room for any intendment; there is no equity about a tax and there is no presumption as to a tax‑‑‑Nothing is to be read in, nothing is to be employed and one can, only look fairly at the language used.

Cape Brandy Syndicate v. I.R. (1921) 1 KB 67 ref.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Purposive approach to be resorted to in a case where there is any ambiguity, however, when the language of law is very clear, same is to be followed.

(f) Interpretation of statutes‑‑‑

‑‑‑‑Taxing statute‑‑‑While interpreting the taxing statute the Court must look to the words of the statute and interpret it in the light of what is clearly expressed‑‑‑Court cannot import provisions in the statute so as to support assumed deficiency.

(g) Interpretation of statutes‑‑‑

‑‑‑‑ Intention of the Legislature‑‑‑While finding out intention of the Legislature language of the law is to be seen and if the intention is clear from the language used, nothing else is to be done.

(h) Interpretation of statutes‑‑‑

‑‑‑‑ Intention of the Legislature‑‑‑If the Legislature has not sufficiently expressed itself, Court has no duty to act for it, for the Court is concerned with what the Statute lays down and not with it has only in mind, but once it has been articulate enough Court does no more than give effect to the intention that it has succeeded in expressing‑‑‑Intention may be expressed in faulty language, in very faulty language in extremely faulty language which is of no consequence as long as there is no doubt as to the intention‑‑‑Draftsman's mistake, as long as it' relates to the form in which the legislative intent is expressed and not to the substance of it, is of no effect‑‑‑Once an element of doubt as to the intention of the Legislature enters the field considerations otherwise irrelevant may all become relevant.

Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335 ref.

(i) Interpretation of statutes‑‑‑

‑‑‑‑ Taxing statute‑‑‑If there is a case, which is not covered by the words of the statute, those are interpreted according to their natural meaning, that can only be cured by legislation and not by any attempt to construe it benevolently by the Courts.

(j) Interpretation of statutes‑‑‑

‑‑‑‑Consideration of hardship or injustice does not weigh with the Courts while interpreting the statute.

A. Ghafoor v. The State PLD 1965 Quetta 10 ref.

Mushtaque A. Memon for Petitioner.

Shakeel Ahmed for Respondent No.3.

Syed Ziauddin Nasir, Standing Counsel.

Date of hearing: 4th November. 2003.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑The relevant facts giving rise to this petition are that the petitioner, a Public Limited Company, engaged in the business of running residential hotels in the name and style of Marriot Hotel, imported Motorboat in the year 1996. They claimed concession in the customs duty and exemption from payment of sales‑tax under Notification S.R.O. 212(I)/91, dated 14‑3‑1991 as amended by S.R.O. 367(I)/91, dated 7‑5‑1994. The imported Motorboat arrived in Pakistan on 15‑2‑1996 and on the same day Bill of Entry was filed. The petitioner then moved the Board of Investment, Government of Pakistan and Ministry of Tourism and Sports, for issuing necessary certificate required for availing the benefit of above S.R.O. On 4‑4‑1996, the Ministry of Tourism and Sports, issued the necessary Office Memorandum and approval as required under the relevant S.R.O. On 6‑4‑1996, a notification was issued by the Respondent No. 1. Ministry of Finance, Government of Pakistan, thereby further amending the Notification S.R.O. 212(I)/91 as amended by S.R.O. 367(I)/91, dated 7‑5‑1994, taking away the exemption from payment of sales‑tax on, the imported Motorboats. The Bill of Entry was processed after issuance of above notification and the Customs officials imposed the sales tax at the rate of 15% in pursuance of the withdrawal of exemption vide Notification SL No.65/96(A), dated 6‑4‑1996.

The petitioner being aggrieved .has filed this petition assailing the imposition of sales‑tax on the ground that the Bill of Entry for home consumption was already filed on 15‑2‑1996, on which date no sales‑tax was payable.

The petitioner has averred that the sales‑tax has been charged by resort to IInd proviso to section 5(2) of the Sales Tax Act, 1990, which is not attracted to the present case, because the Bill of Entry for home consumption was already filed on 15‑2‑1996 on which date no sales‑tax was payable on the import under consideration. It is also alleged that the IInd proviso to section 5 of the Sales Tax Act, 1990, clearly provides that it is applicable to such cases only, where the Bill of Entry is filed for warehousing and not for home consumption. It is pleaded with reference to the provisions of the Customs Act 1969, which are pari meteria to the provisions in the Sales Tax Act that there no doubt as to the intent of the Legislature in enacting section 5(2) of the Sales Tax Act, 1990 and its IInd proviso. The petitioner has further taken plea that this is how the position has been understood even by Collector of Customs (Appraisement) Karachi, in a letter addressed to Member Customs C.B.R. on 26‑1‑1995. In this letter, it is stated that in terms of the IInd proviso to section 30 of the Customs Act, 1969, if duty against Ex‑bond Bill of Entry is not paid within 7 days of its presentation under section 104 thereof, the duty is charged at the rate applicable on the date on which duty is actually paid. This policy has been replicated in the IInd proviso to section 5(1) of the Sales Tax Act, 1990. According to the Collector "the proviso has not been inserted at the right place. It should have been linked with sub‑clause (ii) of clause (b) of section 5(1) of the Sales Tax Act, 1990. If its present placement is left intact it applies not only on Ex‑bond Bill of Entry, but also on home consumption of Bill of Entry, meaning thereby that if sales tax is not paid within 7 days, the importers will have to take clearance from the Appraising Group for no change or otherwise regardless of whether the Bill of Entry is for home consumption or ex‑bond. It is understood that the understated, condition of 7 days is to operate only for Ex‑bond Bills of Entry and home consumption Bills of Entry are immune from any such condition." It is further pleaded that the notification date 6‑4‑1996 issued under section 13 of the Sales Tax Act, 1990, cannot operate to the detriment of the petitioner to affect the vested right acquired by it under the earlier notification and in accordance with the doctrine of estoppel and the principle of legitimate expectation, the petitioner cannot be burdened with the liability of sales‑tax.

The petitioner has sought declaration that the levy of sales‑tax on the imported Motorboat is without lawful authority and the notification, dated 6‑4‑1996 is not applicable. Further declaration is sought that IInd Proviso to section 5(1) of the Sales Tax Act, does not apply to the case of the petitioner.

Parawise comments have been filed on behalf of respondent No.3, contending that the exemption from sales‑tax under S.R.O. 212(I)/91, dated 14‑3‑1991 was available up to April 5th 1996 and not thereafter. It is further contended that the Bill of Entry was filed on 15‑2‑1996 without fulfilling the requisite conditions of S.R.O. 212(I)/91, and hence the petitioner was responsible for delay in the assessment of customs duty and taxes. The Office Memorandum and approval was issued by the Ministry of Tourism and Sports, on 4‑4‑1996 which was presented by the Clearing Agent on 11‑4‑1996 and therefore, the customs duty and taxes were assessed on the Bill of Entry as prevailing on 13‑4‑1996.

It is further contended on behalf of respondent No.3 in the comments, dated 15‑5‑1996, that the IInd proviso to section 5 of the Sales Tax Act, 1990, uses the word `Bill of Entry' without any distinction in the Bill of Entry for home consumption or for Ex‑bond Bill of Entry. It has been admitted that a reference has been made to the C.B.R. for amendment in the IInd proviso to section 5 but the amendment is still awaited and till the amendment is made by the Legislature, action is to be taken according to the existing position of law and the respondent No. 3, has no jurisdiction to act otherwise.

The Assistant Collector of Customs Appraisement (Law) has filed additional affidavit on 5‑9‑2002 whereby certain other documents have been placed on record. A letter, dated 12‑8‑1997 has been written by Secretary (CT‑II) Central Board of Revenue to the Collector of customs, (Appraisement) intimating that the Motorboat imported by Messrs Hashwani Hotels (Marriot) Karachi, does not qualify for exemption under S.R.O. 212(I)/91 on the following grounds:‑‑

(1) The issue had earlier been examined by the Board and regret letter communicated to the importer.

(2) Messrs Karachi Shipyard and Engineering Works Ltd., had informed the Board of Investment, that the boats of similar specification could be manufactured by them.

Customs House was requested to initiate recovery proceedings and penal action against the importer, copy of the C.B.R. letter, dated 2‑4‑1996 was forwarded wherein the petitioner was informed that the Motorboat being imported for Karachi Marriot Hotel Project is not covered by S.R.O. 212(I)/91, dated 14‑3‑1991 therefore, duty concessions under the said S.R.O. are not available to the importer of said boat.

A copy of another letter, dated 25‑8‑2001 from Headquarters FIA, Islamabad to Member (Customs) Central Board of Revenue, has been placed on record according to which Mr. Saddaruddin Hashwani, imported a Motorboat for his personal use but availed exemption of customs duty taking undue, advantages of S.R.O. 212(I)/91, dated 14‑3‑1991 as the Motorboat was never used for tourist business purposes, instead has been imported for personal use.

We have heard Mr. Mushtaque Ahmed Memon, learned Counsel for the petitioner, Mr. Shakeel Ahmed, learned counsel for the respondent No.3 and Syed Ziauddin Nasir; learned Standing Counsel.

Mr. Mushtaque A. Memon, has reiterated the contentions reproduced above and has submitted that the provisions contained, in section 30 of the Customs Act, read with section 79 thereof, are attracted to the facts of the present case. He has maintained that under sub section (2) of section 79, a Bill of Entry under subsection (1) may be presented at any time before or after the delivery of the manifest and under 'section 30(a) the rate of duty applicable is as in force on the date on which the Bill of Entry is presented. Thus, the relevant date for the purpose of calculation of the customs duty and the taxes is the date of filing, of Bill of Entry and not the date of completion/fulfillment of formalities or assessment of the customs duty and taxes. In support of his contention he has placed reliance on a Division Bench judgment of this Court in the case of Abbas Steel Industries Ltd., v. Collector of Customs 1989 CLC 1463. In this judgment it has been held as follows:‑‑

"It is quite clear from subsection (2) of section 79 reproduced above that a bill of entry under subsection (1) may be presented at any time after the delivery of the manifest. Section 30 of the Customs Act which speaks of the date for determination of value and rate of import duty provides that in case of goods cleared for home‑consumption under section 79 of the Act the value and rate of duty of the imported goods will be that which is determined and prevailing on the date of presentation of the bill of entry under section 79 of the Act. Reading the two sections together there can be no doubt that the petitioner in the case was entitled to the clearance of the vessel imported by them for scrapping on the basis of the customs duty which was prevailing on 9‑6‑1982 when they presented their first bill of entry for clearance of the vessel for home‑consumption."

On the other hand Mr. Shakeel Ahmed, learned counsel for the Collector of Customs (Appraisement), the respondent N0.3, has submitted that although the Bill of Entry was filed on 15‑2‑1996 but the conditions for availing the exemption under S.R.O. 212(I)/91, were not fulfilled at the time of filing the Bill of Entry and the requirements were fulfilled on 11‑4‑1994 when the exemption from payment of sales tax was withdrawn, therefore, the petitioner is not entitled to the exemption from payment of Sales Tax and therefore, the Customs officials rightly charged the sales‑tax to which no exception can be taken.

We have carefully considered the contentions raised by the learned Advocates for the parties. It would be appropriate to reproduce sections 30 and 79 of the Customs Act, 1969, referred to by Mr. Mushtaque Ahmad Memon as well as sections 5(1)(b) and section 6(1) o the Sales Tax Act, 1990, as it stood before the amendments introduces by Finance Act, 1996. (Not referred to by Mr. Mushtaque Ahmed Memon).

"(30) Date for determination of value and rate of import duty.‑‑‑The value of and the rate of duty applicable to, any imported goods shall be the value and the rate of duty in force‑‑‑

(a) in the case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under that section; and

(b) in the case of goods cleared from a warehouse under section 104, on the date on which a bill of entry for clearance of such goods is presented under that section:

Provided that, where a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered:

Provided further that in respect, of goods for the clearance of which a bill of entry for clearance has been presented under section 104, whether before or after the commencement of the Finance Ordinance, 1979, and the duty is not paid within seven days of the bill of entry being presented, the value and rate of duty applicable on the date on which the duty is actually paid:

Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of value and rate of duty.

"79. Entry for home‑consumption or warehousing.‑‑‑(1) The owner of the imported goods shall make entry of such goods for home consumption or warehousing or for any other approved purpose by delivering to the appropriate officer a bill of entry of goods declaration thereof in such form and manner and containing such particulars as the Board may direct:

Provided that, if the owner makes and subscribes a declaration before the appropriate officer to the effect that he is unable, for want of full information, to make a complete entry of any goods, then the said officer may subject to the conditions prescribed by the Collector permit him, previous to the entry thereof, to examine the goods in the presence of an officer of Customs or to deposit such goods in a public warehouse appointed under section 12 without warehousing the same, pending the production of such information.

(2) A bill of entry or goods declaration under subsection (1) may be presented at any time before or after the delivery of the manifest.

(3) If an officer not below the rank of Additional Collector of Customs is satisfied that the rate of customs‑duty is not adversely affected and that there was no intention to defraud, he may in exceptional circumstances and for reasons to be recorded in writing permit substitution of a bill of entry or goods declaration for home consumption for a bill of entry or goods declaration‑for warehousing or vice versa.

(4) An officer of Customs not below the rank of Assistant Collector of Customs may in case of goods requiring immediate release allow release thereof prior to presentation of a bill of entry or goods declaration and subject to such conditions and restriction as may be prescribed by the Board."

"(5) Change in the rate of tax.‑‑‑5(1). If there is change in the rate of tax‑‑‑

(b) imported goods shall be charged to tax at such rate as is in force;

(i) in case the goods are entered for home consumption, on the date on which a bill of entry is presented under section 79 of the Customs Act, 1969 (VI of 1969); and

(ii) in case the goods are cleared from warehouse, on the date on which a bill of entry for clearance of such goods is presented under section 104 of the Customs Act. 1969 (VI of 1969):

Provided that where a bill of entry is presented in advance of the arrival of the conveyance by which the goods are imported, the tax shall be charged' as is in force on the date on which the manifest of the conveyance is delivered:

Provided further that if the tax is not paid within seven days of presenting of the bill of entry the tax shall be charged at the rate as is in force on the date on which tax is actually paid. "

"(6) Time and manner of payment.‑‑‑(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 (IV of 1969)."

A perusal of the above provisions contained in sections 30 and 79 of the Customs Act, 1969 and the judgment of this Court in the case of Abbas Steel Industries Ltd., (supra) shows that the proposition of law stands settled that for the purpose of determination of the rate of import duty under the Customs Act, the relevant date is the presentation of Bill of Entry for home consumption under section 79 of the Customs Act. However, second proviso was added to section 30 of the Customs Act by Finance Ordinance, 1979 pertaining to the Bill of Entry under section 104 of the Customs Act, providing that if the duty is not paid within seven days of the Bill of Entry being presented, the value and rate of duty applicable would be the date on which the duty is actually paid.

There is no ambiguity in this proviso, that, it is applicable to the Bill of Entry presented under section 104 of the Customs Act, 1969 only and was not applicable to the Bill of Entry presented under section 79 of the Customs Act. The position of law prevailing for the purpose of sales tax shall be discussed by us presently. However, it is not the end of matter for the reason that the question for consideration before us, pertains to the sales tax and not to the customs duty. Although it is provided in section 6 of the Sales Tax Act, that the tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969, but this provision shall not change the nature of tax and 'therefore, except the provisions pertaining to the collection of sales tax no other provision in the Customs Act, is attracted and particularly the provisions pertaining to the assessment or exemption of sales tax shall still be dealt with under the provisions of the Sales Tax Act. This point already stands decided by the following three judgments of this Court:

(1) Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan, 1990 PTD 29.

(2) Messrs English Biscuit Manufacturers Ltd. v. The Assistant Collect, Central Excises and Land Customs, Landhi Division Karachi, 1991 PTD 178.

(3) Kohinoor Textile v. Federation of Pakistan, 2002 PTD 121.

In the first judgment a plea was taken that the sales‑tax under the ‑provisions of Sales Tax Act 1951, was to be collected under the Customs Act and therefore, section 3 T‑A of the Customs Act became operative for the levy of Sales Tax under the Sales Tax Act 1951. It was held as follows:‑‑

"(4) There is little to argue on the point that the Sales Tax Act of 1951 and the Customs Act of 1969, though taxing statutes, operate in different fields. To our minds what section 3(5) of the Sales Tax Act, 1951, achieves is the introduction of machinery operating under the Customs Act to realizations under the Sales Tax Act, as well. There is a clear distinction between charging provisions of a statute and the machinery part thereof. It is exiomatic that mode and manner of recovery does not alter the nature of a tax nor can a tax be introduced or imposed by implication. We are clear in our minds that it is only payability which is covered by section 3(5) of the, Sales Tax Act and not the imposition or levy of Sales Tax, which is provided for elsewhere in the Sales Tax Act itself. Merely, because of the invocation of section 3(5) of the Sales Tax Act and the application of ‑the Customs Act, 1969, pursuant thereto. Sales Tax is not divested of its inherent attributes and does not become customs duty and therefore, the introduction of section 31‑A in the Customs Act, cannot take away vested rights under the Sales Tax Act and does not make any difference whatever on that source."

In the second case, the provisions contained in the Sales Tax Act, 1951 and Central Excises and Salt Act, 1944 pertaining to the Collection of Sales Tax payable as excise duty came for consideration. It was contended on behalf of assessee that the power so conferred was limited to collection of tax only and not beyond it. It was pleaded that the authorities under the Central Excises and Salt Act, were not authorized to assess tax but only to recover it. The contention found favour with a Division Bench of this Court and it was held that the Central Excises Authorities could exercise all powers conferred on them by the Central Excises and Salt Act without resorting to the procedure for recovery under the, Sales Tax Act, but the assessibility and the recovery are two different aspects of, the taxing statute. First the assessee is assessed to tax and then comes the second step of recovery unless otherwise provided under the law. It was held as under:‑‑

"This provision read with section 3, subsection (4) of the Sales Tax Act provides for the manner and method for determining the value and collection of Sales Tax. It is significant to note that by virtue of the directive of the Central Board of Revenue and section 4(1) of the Central Excises and Salt Act the Central Excise Authorities were empowered to determine the value of the goods and collect the tax but the power of assessment has not been given to them. They can only determine the value and collect the sales tax on that value and the rest is left to the Sales Tax Authority under the Sales Tax Act. Therefore, while originally making a demand respondent No.1 has to determine the value of the goods as discussed above and sales tax is collected on that basis. Once such step has been taken and tax paid the Excise Authorities are exhausted of the power delegated to them. They draw the source of authority from the notification of the Central Board of Revenue which does not empower them to initiate proceeding (after assessment has been made by the Sales Tax Officer), for recovery of any amount of Sales Tax ‑ which according to them has escaped assessment or assessed at a sale price not properly determined at the time of payment of tax or when the assessment was framed. Similar Circular bearing No.2 of 1982 came up for consideration in C. P. No. D‑724 of 1985 Industrial Engineering Ltd. v. Assistant Collector of Customs where the, Assistant Collector authorised by the circular to collect sales tax holding that sales made by the petitioner were incorrectly exempted by the Sales Tax Officer created a demand. The action was struck down as without jurisdiction and it was held that only power given to the Assistant Collector of Customs was to collect Sales Tax in the manner provided by the Central Excises and Salt Act without resorting to procedure provided for recovery by the Sales Tax Act. The direction of C.B.R. was restricted to collection and not the levy of Sales Tax. We are in full agreement with these observations."

In the third judgment, similar issues were considered and earlier judgments of this Court were considered and followed.

The Peshawar High Court has also considered the issue in the case of Messrs Nadeem Electronics (Pvt.) Ltd. v. Collector of Customs, Central Excise and Sales Tax 1999 PTD, 1912. In this case the petitioner did not pay sales tax on the import of various articles on the ground of exemption under a notification. Subsequently, it came to the notice of Customs Department that the exemption was wrongly claimed and therefore, the tax evaded was recovered. It was assailed in the writ petition and refund was claimed for the reason that the recovery was time‑barred under section 6 of the Sales Tax Act, 1969 read with section 32 of the Customs Act, 1969. It was held that the recovery could be made under section 36 of the Sales Tax Act, 1990 and the provisions contained in the Customs Act were not attracted. The petition was dismissed.

Respectfully following the ratio of the above judgments, we are of the view that the issue under consideration pertained to the exemption under the Sales Tax Act and a‑simple question of collection of the sales tax as customs duty is not involved, therefore the provisions contained in this behalf in the Sales Tax Act, 1990, pertaining to the chargeability and rate of tax, shall be applicable as in force at the time of import in this case. As already observed, so far as the; question of the date of determination of the rate of import duty under the Customs Act is concerned, already stands decided, that it is the date of presentation of the Bill of Entry for home consumption. Similar provisions are contained in section 5 of the Sales Tax Act. Second proviso to section 30 of the Customs Act however, provides that in respect of goods for the clearance of which a Bill of Entry for clearance has been manifested under section 104 and duty is not paid within 7 days of the Bill of Entry being manifested, the rate applicable shall be the rate of duty on the date on which duty is actually paid. The proviso is in the nature of exception to the general principle contained in section 30 of the Customs Act. Thus, it places a limitation upon the effect of general principle, contained in section 30 of the Customs Act and serves the purpose of qualifying the applicability of the general rule to the Bill of Entry presented under section 104 of the Customs Act. Similar provision is contained at present in Second proviso to section 5 of the Sales Tax Act, which reads as F follows:‑‑

"Provided further that if the tax is not paid within seven days of the presenting of the bill of entry under section 104 of the Customs Act, the tax shall be charged at the rate as is in force on the date on which tax is actually paid."

A comparison of the proviso as existing at present with the proviso as existed till 30th June, 1996 (which has been reproduced in the earlier part of this judgment) shows that the words "under section 104 or the Customs Act" were inserted by Finance Act, 1996, with effect from 1‑7‑1996. The result is that prior to the amendment made by Finance Act, 1996, the Second proviso to section 5 was applicable generally to the Bills of Entry whether presented under section 79 or section 104 of the Customs Act, 1969. Section 5(b) of the Sales Tax Act, deals with the charge of sales tax and under clause (i) thereof the rate as is in force on the date of presentation of Bill of Entry under section 79 of the Customs Act, shall be applicable and in the case of Bill of Entry under section 104 similar provision is contained in Clause (ii). Under section 30 of the Customs Act, similar provisions were in force at the time of import and presentation of the Bills of Entry in this case with the difference that the second proviso which was inserted by Finance Ordinance, 1979 placed the classification/limitation for payment of customs duty within 7 days of the presentation, of Bill of Entry under section 104 only. The proviso was not applicable since very inception to the presentation of Bill or Entry under section 79 of the Customs Act. However, the Second proviso to section 5 of the Sales Tax Act, 1990 enacted initially, was in general terms meaning thereby, that it was applicable to the Bill of Entry presented under section 79 of the Customs Act, as well as section 104 or the Customs Act. It was only after amendment inserted by Finance Act. 1996 with effect from 1st July, 1996 that the Second proviso was made applicable to the Bill of Entry presented under section 104 of the Customs Act, thereby excluding the applicability of the proviso to the Bill of Entry presented under section 79 of the Customs Act, 1969. In the present case, the Bill of Entry was presented on 15‑2‑1996 and the sales tax was charged on 13‑4‑1996 when the exemption was already withdrawn with effect from 6‑4‑1996 under the notification dated 4‑4‑1996.

Mr. Mushtaque A. Memon, was specifically confronted with the question of applicability of IInd proviso to section 5 of the Sales Tax Act, as prevailing on 11‑4‑1996 when the requirements necessary for availing the exemption under S.R.O. 212(I)/91 were complied with and the Bill of Entry was assessed on 13‑4‑1996. Mr. Mushtaque A. Memon, contended that the IInd proviso to section 5 of the Sales Tax Act, is not attracted to the facts of the present case as it is applicable to the Bill of Entry presented under section 104 of the Customs Act, 1969 only and not to the Bill of Entry presented under section 79 of the said Act. This contention has been raised with reference to the provisions of Customs Act, with a plea that the two provisions are pari meteria and therefore, the intention of Legislature in enacting the IInd proviso to section 5 of the Sales Tax Act, was all along to prescribe a classification/limitation in respect of Bill of Entry presented under section 104 of the Customs Act only and was not intended to be applied to the Bill's of Entry presented under section 79 of the Customs Act. In this regard, support has been sought from the opinion of Collector of Customs in the letter written to Member Customs C.B.R, dated 26‑1‑1995. The contents of the letter have been reproduced in the narrative part of the judgment. The Collector of Customs in the said letter has pointed out that the IInd proviso to section 5 of the Sales Tax Act, should be suitably amended so as to bring it at par with the IInd proviso to section 30 of the Customs Act, 1969.

A perusal of the above letter shows that although the, Collector of Customs has pointed out the necessity for the amendment and in fact the proposed amendment has been enacted by Finance Act, 1996 with effect from 1‑7‑1996, but the amendment has been made with retrospective effect, and therefore, the law as it stood up to 30th June, 1996 envisaged that the Second proviso to section 5 was applicable to the Bills of Entry presented under section 104 of the Customs Act, as well as to the Bills of Entry presented under section 79 of the said Act. The same view is expressed by the Collector of Customs in the letter under reference and therefore, it cannot be said that the law as it stood up to 30th. June, 1996 provided any immunity to the Bill of Entry presented for home exemption under section 79 of the Customs Act from the condition prescribed in the Second proviso to section 5 of the Sales Tax Act, 1990.

The Courts are required to interpret and apply the law as they exist at a particular point of time relevant for consideration and not on the basis of law as it ought to be or ought to have been. A transaction governed under the Sales Tax Act, 1990 is to be considered in the light of provisions contained in the Sales Tax Act and not on the basis of a law contained in another tax statute, in this case the Customs Act. The sales tax and customs duty although belong to the species of indirect tax but they are not the same and operate in their distinct and separate field in accordance with the provision's contained in the relevant statutes. On the basis of analogy in any other statute the clear language of a law cannot be stretched so as to bring it in conformity with the provisions 'contained in another statute or in consonance with the amendment subsequently made with prospective effect. The principle of interpreting a taxing statute has been laid down by the Rowlatt, J. in the case of Cape Brandy Syndicate v. I.R. (1921) 1 KB 67, as follows:‑‑

"In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equality about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be employed. One can only look fairly at the language used:"

The above principle has attained the status of classical principle in the realm of tax law. It has been approved by the House of Lords in the case of Canadian Eagle Oil Co. Ltd. v. The King 27 ITC 205, 248, and has been applied with approval in a large number of cases by superior Courts in the Indo Pak Sub‑Continent including the Supreme Courts of Pakistan and India. Thus, the applicability of IInd proviso to section 5 of the Sales Tax Act to the present case cannot be resorted to merely on the basis of intendment or presumption. The principle of purposive interpretation cannot be employed also for the reason that the principle of purposive approach is to be resorted to in the case, where there is any ambiguity. However, when the language of law is very clear, it is to be followed. A similar question came for consideration before the Hon'ble Supreme Court in the case of Hirjina and Co. v. Commissioner of Sales Tax 1971 PTD 200. In this case the question of applicability of an amendment inserted in the Sales Tax Act, 1951 came for consideration. The Hon'ble Supreme Court held that the true scope of the amendment must be determined on the fair reading of the words used in their natural and ordinary meaning. It was further held that," we may here observe that while interpreting the taxing statute the Courts must look to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency."

The issue was again considered by the Hon'ble Supreme Court in the case of Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335. It was observed by his lordship B. Z. Kaikaus, J. That, `while finding out intention of the Legislature language of the law is to be seen and if the intention is clear from the language used nothing else is to be done." It was further observed that, "If the Legislature has not sufficiently expressed itself we have no duty to act for it, for we are concerned with what it lays down and not with what it has only in mind, but once it has been articulate enough we do no more than give effect to the intention that it has succeeded in expressing. That intention may be expressed in faulty language, in very faulty language, in extremely faulty language. This is of no consequence as long as there is no doubt as to the intention. A draftsman's mistake as long as it relates to the form in which the legislative intent is expressed and not to the substance of it is of no effect. Of course once an element of doubt as to the intention of the legislature enters the field considerations otherwise irrelevant may all become relevant."

Hamoodur Rehman J., (as his lordship then was) reiterated the principle of interpretation propounded by Rowlatt. J, in the case of Brandy Syndicate and by the House of Lords in the case of Canadian Eagle Oil Co. Ltd. and thereafter observed as follows:‑‑

"Thus, in a statute of this nature if there is a case, which is not covered by the words of the statute interpretation according to their natural meaning, that can only be cured by legislation and not by any attempt to construe it benevolently by the Courts."

So far, the question of hardship if any is concerned, it was held by his lordship Wahiduddin Ahmed, J. (as his lordship then was) in the case of A. Ghafoor v. The. State, PLD 1965 Quetta 10, that the consideration of hardship or injustice does not weigh with the Courts while interpreting the statute.

For the foregoing reason, we are of the opinion that the‑Second proviso to section 5 of the Sales Tax Act, 1990, as it stood prior to 1st July, 1996, covered the presentation of Bills of Entry under section 104 as well as section 79 of the Customs .Act and the applicability thereof to the Bill of Entry under section 79, was excluded by the amendment inserted by Finance Act 1996 only with effect from 1‑7‑1996. If the intention of the Legislature would have been to apply it retrospectively the Legislature could have done it by expressly stating so. The result is that the IInd proviso to section 5 of the Sales Tax Act 1990, as it stood during the period relevant in this case was fully applicable and consequently the exemption from payment of sales tax on the import claimed by the petitioner was not available. Thus, the action of the respondent charging the sales tax on the import made by the petitioner is not open to any exception.

Before parting with this order, we would like to clarify that the principle of promissory estoppel as contained in the judgment of Hon'ble Supreme Court in Al‑Samraiz case 1986 SCMR 1917, was not argued before us and even otherwise the ratio of the cited case is not attracted for the reason that at the time of filing of Bill of. Entry the amendment was still available but the petitioner could not avail the same because the requirements for availing the exemption could not be fulfilled by the petitioner before 11‑4‑1996,while the exemption was already withdrawn, with effect from 6‑4‑1996 and the provisions contained in IInd proviso to section 5 of the Sales Tax Act became operative. The petition stands dismissed accordingly. The parties are left to bear their own cost.

M.B.A./H‑2/K Order accordingly.