Messrs SHAHZAD GHEE MILLS LTD. through Chief Executive, Peshawar VS FEDERATION OF PAKISTAN
2005 P T D 1205
[Karachi High Court]
Before Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ
Messrs SHAHZAD GHEE MILLS LTD. through Chief Executive, Peshawar
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Finance & Economic Affairs, (Revenue Division), Islamabad and 3 others
C.P. Nos. 585-D and 1295 of 2004, decided on /01/.
21st December, 2004. Customs Act (IV of 1969)---
----Ss. 12 & 13---S.R.O. 822(I)/91 dated 20-8-1991---S.R.O. 1140(I)/97 dated 6-11-1997---S.R.O. 450(I)/2001 dated 18-6-2001---Power to declare or licence public warehouses/private wherehouses---Additional duty will be charged on all transactions/goods into bonded wherehouses appointed under S. 12, Customs Act, 1969 and licensed under S. 13 of the said Act except those mentioned in S.R.O. 822(I)/91 dated 20-8-1991 which also included goods imported as raw materials and stored in manufacturing bonds operating under Notification S.R.O. 1140(I)/97 dated 6-11-1997 superseded by S.R.O. 450(I)/2001 dated 18-6-2001, therefore neither additional customs duty/warehousing surcharge will be payable nor it will be demanded on the goods meant to be legally stored in such manufacturing bonds.
Nisar A. Mujahid for Petitioners.
Raja Muhammad Iqbal for Respondents.
ORDER
ANWAR ZAHEER JAMALI, J.---Above titled two petitions based on similar set of facts involving common questions of law have been preferred with the following identical prayers:--
In the aforementioned circumstances, it is most respectfully prayed that this
Hon ble Court by issuing the appropriate writ may be pleased to be declared the levy to charge of 0.5% additional customs duty from the petitioner, as illegal and of no legal effect. It is further prayed that this
Hon ble Court may graciously be pleased to direct the respondents to clear the imported goods of the petitioner without levy of any additional customs duty. It is also prayed that the respondents may please be ordered to refund the duties to petitioner, which they have charged illegally.
Any other relief which this
Hon ble Court deems fit in the circumstances of the case and cost of litigation may also be granted to the petitioner. 2.In short, case of both the petitioners is that they are licensee under section 13 of the Customs Act, 1969 read with S.R.O. No.1140(I)/97, dated 16-11-1997. They were issued licence under Clause 3(1) of S.R.O. 611(I)/97, therefore, Clause 12(a)(i) of the said S.R.O. entitles them for import duty free inputs. The earlier S.R.O. No.1140(I)/97 was replaced and superseded by S.R.O. No.450(I)/01, thus Rule 234 of Chapter IV of the said S.R.O. now governs licensing of the petitioners. Further case of the petitioners is that under the aforementioned S.R.Os. they are entitled to import RBD Palm Oil for preparation of Ghee without any customs duty and they are further entitled to the exemption from levy of additional duty under S.R.O. 822(I)/91, dated 20-8-1991. The grievance of petitioners is that in violation of such benefit available to the petitioners, placing reliance upon Notification No.486(I)/03, dated 7-6-2003 respondents are charging additional Customs duty/warehousing charges at the rate of 0.5% from them and despite their persuasion they are adamant to do so, which has compelled them to file these petitions.
3.Comments on behalf of the respondent have been filed in both the petitions wherein in the preliminary objections (para. 1) and para.6 of parawise comments they have stated as under:--
At the outset it is respectfully submitted that additional customs duty/warehousing surcharge @ 1% was levied under subsection 1 of section 10 of the Finance Act, 1991 (XII of 1991) by the Federal Government. This additional duty was charged on all transactions/goods into bonded warehouses appointed under section 12 and licensed under section 13 of Customs Act, 1969 except those mentioned in S.R.O.822(I)/91, dated 20-8-1991 which also include goods imported as raw materials and stored in manufacturing bonds operating under notification S.R.O. 1140(I)/97, dated 6-11-1997 superseded by S.R.O. 450(I)/2001, dated 18-6-2001. Therefore, neither additional customs duty/ warehousing surcharge is payable nor is demanded for goods meant to store in manufacturing bonds. The petitioner is concealing the actual fact that the importer taken delivery and stored the goods imported by them in a public warehouse appointed under section 12 of Customs Act, 1969 for many weeks which attracts additional customs duty/warehousing surcharge. It is pertinent to mention that the petitioner himself declare the name of warehouses and endorsement regarding payment of warehousing surcharge as evident from many GDs (Bills of Entry) attached to petition as annexed J1 & J16. The petitioner never objected and willingly paid warehousing surcharge regularly as all other importers do without registering any protest. The petitioners contentions are mala fide and contrary to the provision of law, therefore, not sustainable in the eye of law. The departmental remedy available has also not been exhausted.
The respondents are lawfully charging additional customs duty/warehousing surcharge at the rate of 0.5% on all the edible oils if the goods are cleared within 30 days. If the goods are not cleared within 30 days one per cent (1%) warehousing surcharge is payable by the importer in terms of subsection 1 of section 10 of the Finance Act, 1991 (XII of 1991) read with S.R.O. 486(I)/2003, dated 7-6-2003. These provisions are applicable to goods intended to be stored in private/public warehouses licensed under sections 12 & 13 of Customs Act, 1969 except manufacturing bonds/warehouses operating under notification S.R.O. 1140(I)/97, dated 6-11-1997 vide S.R.O. 822(I)/91, dated 20-8-1991.
4.Learned counsel for the petitioner submits that without entering intofactual controversies raised by the respondents in their comments he will be satisfied with the disposal of this petition in the terms that the respondents may be bound down by their own statement reproduced above which shows that the goods imported as raw materials and stored in manufacturing bonds operating under the Notification S.R.O. No.1140(I)/97, dated 6-11-1997 superseded by S.R.O. 450(I)/01, dated 18-6-2001, are neither liable for additional Customs duty/warehousing charges nor it is to be demanded for the goods meant to be stored in such manufacturing bonds.
5.Mr. Raja Muhammad Iqbal, learned counsel for the respondents has not disputed this position. However, he has strongly controverted other facts stated by the petitioners in their petitions.
6.Be that as it may, since the petitioners are now seeking disposal of these petitions on the basis of admissions/assertions made by the respondents in their own comments we find no justification for not extending such relief/benefit to them.
7.In view of the above both these petitions are disposed of in the terms that the additional duty will be charged on all transactions/goods into bonded warehouse appointed under section 12 and licensed under section 13 of Customs Act, 1969, except those mentioned in S.R.O. 822(I)/91, dated 20-8-1991 which also include goods imported as raw materials and stored in manufacturing bonds operating under notification S.R.O. 1140(I)/97, dated 6-11-1997 superseded by S.R.O. 450(I)/2001, dated 18-6-2001, therefore, neither additional Customs duty/warehousing surcharge will be payable nor it will be demanded on the goods meant to be legally stored in such manufacturing bonds.
Pending applications also stand disposed of.
M.B.A./S-95/KOrder accordingly.