ASHRAF INDUSTRIES (PVT.) LTD. VS FEDERATION OF PAKISTAN
2005 P T D 2507
[Karachi High Court]
Before Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ
ASHRAF INDUSTRIES (PVT.) LTD. and another
Versus
FEDERATION OF PAKISTAN and others
C. Ps. Nos. D-585 and 1295 of 2004, decided on 21st December, 2004.
Customs Act (IV of 1969)---
----Ss. 12, 13, 18-A & 33---S.R.O. 1140(I)/97, dated 6-11-1997---S.R.O. 450(I)/01, dated 18-6-2001--S.R.O. 822(I)/91, dated 20-8-1991---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Levy of additional customs duty---Refund of duties---Petitioner had sought declaration that levy of 0.5% additional customs duty was illegal and of no legal effect and that authorities be ordered to refund duties to petitioner which they had charged illegally---Petitioner had submitted that he would be satisfied if authorities were bound down by their own statements which had shown that goods imported as raw material and stored in manufacturing bonds operating under Notification S.R.O. No.1140(I)/97 dated 6-11-1997 superseded by S.R.O. 450(I)/01 dated 18-6-2001, were neither liable for additional customs duty/ warehousing charges nor it was to be determined for the goods meant to be stored in such manufacturing bonds---Authorities having not disputed said position, Constitutional petitions were disposed of in terms that additional duty would be charged on all transactions/goods into bonded warehouse declared under S. 12, Customs Act, 1969 and licensed under S. 13 thereof 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imported as raw materials and - stored in manufacturing bonds under Notification S.R.O. 1140(I)/97 dated 6-11-1997 as superseded by S.R.O. 450(I)/2001 dated 18-6-2001---Neither additional customs duty/warehousing charges would be payable nor it would be demanded on the goods meant to be legally stored in such manufacturing bonds.
Nisar A. Mujahid for Petitioners.
Raja Muhammad.Iqbal for Respondents.
Date of hearing: 21st December, 2004.
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 declare the levy to charge of 0.5% additional custom 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 custom 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 licensees 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)/1997, therefore, Clause 12(a)(1) 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 the 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 had 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 ware-housing 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 petitioner's 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 to the rate of 0.5% on all the edible oils if the goods are cleared within 30 days. It 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 into factual 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/ware housing 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 of them.
7. In view of the above 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.
H.B.T./A-232/KOrder accordingly.