COLLECTOR OF CUSTOMS, CUSTOM HOUSE, NABHA ROAD, LAHORE VS GHULAM BARI AKBAR
2005 P T D 1169
[Lahore High Court]
Before Nasim Sikandar and Mian Hamid Farooq, JJ
COLLECTOR OF CUSTOMS, CUSTOM HOUSE,
NABHA ROAD, LAHORE versus
GHULAM BARI AKBAR
C.As. Nos. 543 to 545 of 2003, heard on /01/.
7th July, 2004. (a) Finance Act (IV of 1999)---
----S.18(7)(b)---S.R.O. 116(I)/2000 dated 7-3-2000---S.R.O. having been issued on 7-3-2000 would take effect from the date of its publication in the official Gazette on 10-3-2000---Bills of entry having been filed, in the present case, on 9-3-2000, was a past and closed transaction when the S.R.O. in question was published on 10-3-2000.
(b) Customs Act (IV of 1969)---
----Ss. 19(2) & 30---Finance Act (IV of 1999), S. 18(7)(b)---S.R.O. 116(I)/2000 dated 7-3-2000---Exemption/refund---Date for determination---S.R.O. 116(I)/2000 dated 7-3-2000 was issued by the Federal Government in exercise of the powers conferred by S. 18(7)(b), Finance Act, 1999 and not under S. 19, Customs Act, 1969---Even otherwise in the absence of mentioning of a specific date of enforcement or coming into force of the said S.R.O., the provisions of S. 19(2), Customs Act, 1969 would not apply and the general rule applicable with regard to the notifications would be applicable.
2002 CLC 1275 ref.
(c) Finance Act (IV of 1999)---
----S. 18(7)---Customs Act (IV of 1969), Ss. 19(2) & 30---S.R.O. 116(I)/2000 dated 7-3-2000---Refund---Date for determination---S.R.O. 116(I)/2000 dated 7-3-2000 though was issued on 7-3-2000 but took effect from 10-3-2000 when it was published in the official Gazette, and therefore, the importer was entitled to claim refund which was not hit by the mischief of the provisions of Ss. 19(2) and 30 of the Customs Act, 1969.
Ch. Muhammad Zafar Iqbal for Appellant.
Mian Abdul Ghaffar for Respondent.
Date of hearing: 7th July, 2004.
JUDGMENT
NASIM SIKANDAR, J.---This judgment will dispose of C.As. Nos. 543, 544 and 545 of 2003.
2.These three appeals by the Revenue assail a common order recorded by a Division Bench of the Customs, Excise and Sales Tax Appellate Tribunal on 26-8-2003. Through that order the learned members of the Tribunal concluded that since S.R.O. 116(I)/2000, dated 7-3-2000 was issued under section 18(7)(b) of the Finance Act, 1999, the Revenue could not press into service the provisions of subsection (2) of section 19 of the Customs Act, 1969. Accordingly, following the dictum laid down by a Division Bench of the Sindh High Court reported as 2002 CLC 1275 the learned members set aside the impugned order of Collector (Appeals), dated 30-12-2002 which in turn had maintained the order in original, dated 4-9-2002 rejecting the three claims of refund earlier made by the present respondent.
3.The respondent imported used Nissan Dumper Trucks from Japan and filed three bills of entry with the Customs Authorities for their release on 9-3-2000. He claimed exemption from levy of duty/taxes in terms of section 18 of the Finance Act, 1999 read with aforesaid S.R.O. and the 6th Schedule to the Sales Tax Act, 1990. The Customs Authorities refused to allow exemption on the ground that the said S.R.O. was issued on 7-3-2000 while the three bills of entry were filed by the importer on 9-3-2000. Accordingly both customs duty and sales tax were charged from the importerwho got the goods cleared on payment thereof. Thereafter he filed refundclaims with the concerned Customs Authorities which, after adjudication proceedings were rejected by way of order in original and the appeal, as noted above, filed by the importer/present respondent was also rejected.
4.Learned members of the Tribunal accepted the reliance of the importer on the aforesaid judgment of the Hon ble Sindh High Court and re-produced paras. 25 and 26thereof which read as under:--
(25) After the above authoritative pronouncement by the Hon ble Supreme Court no further discussion is required by us. Respectfully following the dictum laid down by the Hon ble Supreme Court of Pakistan it is held that the S.R.O. 116(I)/2000, dated 7-3-2000 issued under section 18(7)(b) ofthe Finance Act, 1999 became effective from 10-3-2000 and customs duty on Mazda DumpTruckimportedbythepetitionerwasdeterminedon8-3-2000 when the bill of entry was manifested under section 30 of the Customs Act, 1969 and therefore, the S.R.O. shall not be applicable to the import under consideration which was concluded as past and closed chapter, prior to the S.R.O. become effective.
(26)The petition is accordingly allowed and it is declared that the petitioner is entitled for concession and exemption contained in section 18 of the Finance Act, 1999 on import of Mazda Dump Truck. It is further declared that the actions and acts of the respondents detaining the said truck for the purpose of determining the customs duty and sales tax are illegal, unlawful, without jurisdiction and mala fide, having no legal effect. The respondents are directed to release the imported Dump Truck, to the petitioner forthwith.
5.The Revenue being dissatisfied with the order of the Tribunal has filed this appeal under section 196 of the Customs Act, 1969 claiming that following three questions of law arise out of the said order of the Tribunal.
(I)Whether the S.R.O. No. 116(I)/2000, dated 7-3-2003 having been issued on 7-3-2000 would take effect from the date of its issuance and not from 10-3-2000 when it was published in the official Gazette?
(II)Whether the respondent is not entitled to claim refund in view of section 19(2) and section 30 of the Customs Act, 1969?
(III)Whether the Customs, Excise and Sales Tax Appellate Tribunal erred in law while declaring the respondent entitled to exemption from payment of duty and taxes in terms of section 18 of Finance Act, 1999?
6.After hearing the learned counsel for the parties we are not persuaded to interfere for the Revenue for the following reasons:--
Firstly, we are in agreement with the ratio as well as reasons recorded by the Hon ble Division Bench in the aforesaid judgment that the said S.R.O. invoked by the Revenue would be effective from 10-3-2000 when it was published in the official Gazette. We are also of the view that the three bills of entry having been filed in this case on 9-3-2000, it was a past and closed transaction when the aforesaid S.R.O. was published on 10-3-2000.
Secondly, learned counsel for the petitioner is absolutely correct in claiming that provisions of section 19(2) and section 30 of the Customs Act, 1969 are not applicable in the case in hand. The impugned S.R.O. was issued by the Federal Government in exercise of powers conferred by clause (b) of subsection (7) of section 18 of the Finance Act, 1999 and not under section 19 of the Customs Act, 1969. Even otherwise in absence of mentioning of a specific date of enforcement or coming into being of the said S.R.O. the provisions of subsection (2) of section 19 of the Customs Act will not apply and the general rule applicable withregardtothenotificationsaslaiddownby the Hon ble Sindh High Court in the said judgment will apply.
7.Accordinglyagreeingwiththereasonsgivenby our brothersof the KarachiHighCourtinthesaidjudgmentwewillholdthatthe S. R. O. in question though issued on 7-3-2000tookeffectonlyfrom 10-3-2000 when it was published and, therefore, the respondent/ importer was entitled to claim refund which was not hit by the mischief of the provisions of section 19(2) and section 30 of the Customs Act, 1969.
8.The three questions are answered accordingly.
M.B.A./C-49/LOrder accordingly.