(On appeal from the judgment/order dated 13‑11‑1996 passed by Sindh High Court in C.P. No.723 of 1995).

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 33‑‑‑S.R.O. 50(I)/1992, dated 28‑1‑1992‑‑‑S.R.O. 484(I)/1992, dated 14‑5‑1992‑‑‑Refund of customs duty, claim for‑‑‑Importer sold, goods through agreement, under which purchaser was liable to pay customs duty‑‑‑Importer executed power of attorney in favour of purchaser to act on his behalf for purpose of receiving any amount due on import of goods‑‑‑Purchaser cleared goods by paying customs duty in the name of importer‑‑‑Goods were exempt from payment of customs duty under S.R.Os. 50(I)/1992 & 484(I)/1992, thus, purchaser claimed its refund in his own right, but not as attorney of importer ‑‑‑Validity‑‑ Refund of customs duty could be claimed under law by importer of goods‑‑‑If customs duty was paid by purchaser on behalf of importer as his attorney under sale, agreement, then he might have a right to recover the same from importer by filing suit on its‑ refund to importer‑‑ Purchaser had not got himself acknowledged as importer before Customs Authority for purpose of claiming refund in his own right Importer had not claimed refund or he was made party in proceedings before authority‑‑‑If purchaser had suffered any loss on account of inaction of importer in matter of claiming refund, he might sue him, if law provided any remedy‑‑‑Purchaser in his own right, could not maintain such claim.

Tariq Khokhar, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos.3 and 4.

Remaining Respondents Ex parte

Date of hearing: 4^th December, 2003.

JUDGMENT

MUNIR A. SHEIKH, J.‑‑‑The appeal by leave of the Court is directed against the judgment, dated 13‑11‑1996 of the High Court of Sindh Karachi whereby Constitution petition filed by the appellant has been dismissed.

2. The machinery in dispute was imported by one Muhammad Nasir on 7‑9‑1991, before which on 2‑6‑1991, according to the appellant said Muhammad Nasir entered into an agreement with him for the sale of said machinery.. According to the terms and conditions of this agreement, appellant took upon himself to pay Government taxes, customs duty on the import of said machinery with a provision of execution of power of attorney in his favour by Muhammad Nasir to act for him and on his behalf for the purpose of receiving any amount due on the import of said machinery. S.R.O. No.50(I)/1992, dated 28‑1‑1992 was issued according to which such machinery which had been imported for setting up new units or modernization of the existing units were exempted from payment of customs duty and other Government dues which was substituted by S.R.O. No. 484(I)/1992, dated 14‑5‑1992:

3. The case of the appellant was that machinery was cleared after payment of customs duty and other Government dues but it was exempted from payment of customs duty, etc., under the said S.R.O. It was required to produce certificate of its installation within the stipulated period in the area provided in S.R.O. The case of the appellant was that the machinery was installed in such area and on the basis of said agreement of sale executed in his favour by Muhammad Nasir, he filed claim in his own right for refund of the taxes and duties already paid which was rejected by the Assistant Collector Customs on the ground that appellant vas not the importer as such could not claim refund. It was also held that the machinery was old one, therefore, it was not covered by the said SRO as such no refund could be claimed. Appeal tiled by the appellant was dismissed on 18‑1‑1993 by the Collector and revision petition also met the same fate. Constitution petition filed by the appellant has been dismissed through the impugned judgment, dated 13‑11‑1996 by learned Division Bench of the High Court of Sindh against which this appeal by leave of the Court is directed.

4. Leave was granted to consider whether the appellant being purchaser of the machinery could maintain the claim for refund of the customs duty paid on the import of machinery under the rules and that he could claim the same in his own right.

5. The argument raised by the learned counsel for the appellant that under agreement of sale, he was entitled to maintain the claim in his own right for refund of the amount is not sustainable. The refund of customs duty, etc., could be claimed under the law by the importer of the goods. If customs duty was paid by the appellant on behalf of the importer as attorney under the agreement with the importer, he may have a right to recover the same from the importer through suit in, a Court of plenary jurisdiction on its refund to the importer. Under the relevant law and the notification under which the claim was lodged, it was clearly, provided that it was importer who could claim refund of the customs duty, etc. It was admitted by the learned counsel for the appellant that initially customs duty was paid in the name of Muhammad Nasir and the appellant never got himself acknowledged as importer before the Customs Authority for the purpose of claiming refund in his own right. The power of attorney which was executed in his favour by Muhammad Nasir also provided that he could perform a number of acts on his behalf, but it was not got registered though the same required registration. The claim was filed by the appellant in his own right and not on behalf of Muhammad Nasir as his attorney and uptil today, he (Muhammad Nasir) has not claimed the refund nor he was made party in the proceedings before the departmental authority.

6. The question whether it was machinery which was exempted from payment of sales tax or person who had imported the same is of no significance as notification expressly provided that it was importer who could claim the refund and no one else. If the appellant has suffered any P loss as purchaser' on account of inaction of Muhammad Nasir in the matter of claiming refund, he may, if law provides any remedy sue him.

7. For the foregoing reasons, this appeal has no merits which is hereby dismissed. No order as to costs.

S.A.K./P‑14/SAppeal dismissed.