Imports and Exports (Control) Act (XXXI of 1950)----

----S.3(1)---Import Trade and Procedure Order, 2000, paras. 18 & 19-- Levy of additional surcharge of 10 per cent over and above the duties and taxes to be paid for release of consignment---Powers of Ministry of Commerce---Scope of paras. 18 & 19 of Import Trade and Procedure Order, 2000, was confined to issue relating to importability of items and related matters---Ministry of Commerce was empowered to control import' and export and devise-policies in that behalf, but was not empowered to levy any duty, tax or surcharge which was within exclusive jurisdiction of Ministry of Finance/Revenue Division-- Customs Officials had no jurisdiction/authority to demand 10% surcharge for release of goods imported in absence of any S.R.O. issued by the Revenue Division in such respect.

Ch: Muhammad Iqbal for Petitioners.

S. Tariq Ali, Federal Counsel, Shakeel Ahmed, Ata-ur-Rehman and Ms. Masooda Saraj for Respondents.

Date of hearing; 26^th February, 2003.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---A common question of fact and law is involved in all the petitions and therefore, having been heard together, are disposed of by this single consolidated order.

Mr. Ch. Mohammad Iqbal, learned counsel for the petitioner has stated that the sole point pressed by him pertains to the levy of additional surcharge of 10 per cent over and above the duties and taxes to be paid for the release of the consignment (Dump Trucks) imported by the petitioners.

After hearing learned Advocates for the parties, it transpires that the Ministry of Commerce suggested through Office Memorandum, dated December 23, 2002 and Office Memorandum, dated January 9, 2002 that several importers have imported Dumpers in SKB condition and in order to regularize the import of Dumpers in SKD condition shipped before 20 November, 2002 the Dumpers may be released on payment of surcharge of 10 per cent on duty paid value, it import is otherwise in order. However, C.B.R. has not issued any S.R.O. levying any surcharge as conceded by the learned Advocate for the respondents.

Ch. Mohammad Iqbal has stated that although Central Board of Revenue (C.B.R.) has not issued any S.R.O. levying any additional surcharge but on the basis of Office Memorandums containing suggestion from the Ministry of Commerce for release of the consignments on payment of surcharge of 10 per cent over and above the duties and taxes paid by the importers, the Customs Officials have refused to release the goods until and unless the surcharge is paid. His contention is that the Ministry of Commerce is empowered to control import and export, and device policies in this behalf but is not empowered to levy any duty, tax or surcharge which is within the exclusive jurisdiction of the Ministry of Finance/Revenue Division.

Mr. Shakeel Ahmed, learned counsel for C.B.R. and Collector of Customs Appraisement, has conceded to the legal proposition that the taxes/duties/surcharges, can be levied by the Revenue Division (C.B.R.) and Ministry of Commerce has no such authority in law. He has further conceded that no such S.R.O. has been issued by the C.B.R.

Ch. Mohammad Iqbal has submitted that Ministry of Commerce has issued clarification with reference to paras. 18 to 19 of the Import Trade and Procedure Order, 2000 which is creating confusion. Paras. 18 and 19 of the Import Trade and Procedures Order, 2000 read' as follows:

`(18)ITC classification.-Any dispute of classification regarding importability of an item that cannot be revolved by the Customs Authorities shall be referred to Ministry of Commerce for final decision.

(19)General.-Any import related not covered by this order shall be referred to Ministry of Commerce for advice; clarification or decision. "

A perusal of the above paras shows that the Ministry of Commerce has been empowered to resolve any dispute or issue clarification regarding importability of item, that cannot be resolved by Customs Authorities and any matter related to import not covered by the Import Trade and Procedures Order, 2000. The above paras. of the Import Trade and Procedures Order, 2000 have been issued by the Ministry of Commerce in exercise of the powers conferred under subsection (1) of section 3 of the Imports and Exports (Control) Act. 1950. No powers can be acquired by the Ministry of Commerce by a subordinate legislation for the levy of any tax, duty or surcharge. Thus the scope of paras 18 and 19 of the Import Trade Procedures Order 2000 is confined to the issue. relating to importability of the items and related matters not covered by the said order. It does not confer any authority on the Ministry of Commerce to levy/impose any tax which is within the exclusive jurisdiction of the Ministry of Finance/Revenue Division.

Since C.B.R. has not issued any S.R.O. levying any surcharge and advice of the Ministry of Commerce, has no legal status so far the levy of tax/duty of the surcharge is concerned therefore it is held that the Customs Officials have no authority to demand any surcharge on the basis of an advice to the C.B.R.

Consequent to the above discussion, it is declared that the Customs Officials have no jurisdiction/authority to demand 10 per cent surcharge for the release of the damp trucks imported by the petitioners in the absence of any S.R.O. issued by the Revenue Division in this behalf. All the petitions are disposed of as above.

In several petitions the petitioners were directed to deposit an amount equivalent to 10 per cent surcharge with the Nazir of this Court, at the time of admission of the petitions. In view of the order made above the Nazir is directed to refund all such deposits to the respective petitioners on proper verification and identification.

H.B.T./M-557/KPetitions allowed.