PARKE DAVIS & COMPANY LTD. VS COLLECTOR OF CUSTOMS through Assistant Collector Customs AFU, 2006 PTD-KARACHI-HIGH-COURT-SINDH 1976 (2005)

Customs Act (IV of 1969)---

----S. 18(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Charging of regulatory duty---Contention of petitioners that in terms of notification regulatory duty could be charged on the import of goods chargeable to statutory or concessionary rate of 0% duty and not on the goods importable free of duty, was repelled as practically there was no difference between terms 0% and `free of duty' both conveyed the same meaning---No distinct or separate concept of Zero rated import as was in concept of Zero rated supply in Sales Tax Act, 1990 existed in Customs Act, 1969, under Sales Tax Act, 1990 concept of "Zero rated supply" was introduced only for the purpose of claiming adjustment or refund of input tax; whereas in the Customs Act, 1969 no such scheme existed---Regulatory duty, in circumstances was rightly charged from petitioners on the goods, which according to First Schedule were importable free of duty held;---Petitioners were not entitled to its refund.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 ref.

Aziz A. Shaikh and Ch. Muhammad Wasim Iqbal for Petitioners.

Nadeem Qureshi for Respondents Nos.1 and 2.

Mehmood Alam Rizvi, Standing Counsel.

Date of hearing: 26th January, 2006.

JUDGMENT

ALI SAIN DINO METLO, J.---The petitioners, in all the above four petitions, have challenged the collection of regulatory duty on the pharmaceutical products imported by them during the period from November, 1995 to June, 1996 and have prayed for its refund, contending that the duty could not be charged on the goods which were importable free of duty tinder the First Schedule to the Customs Act, 1969. Their previous Petitions, bearing Nos.D-796/97, D-520/97, D-889/97 and D-1695/96, which were in effect for the same relief, were dismissed as not pressed on 3-9-2002, 7-8-2002, 3-9-2002 and 7-8-2002 respectively.

2. On 29-10-1995 by a Notification, bearing No. S.R.O. 1050(1)/95, the Federal Government in exercise of its power under section 18(2) ibid, levied a further regulatory duty at the rates of 5% and 10% ad volorem on the import of certain goods. The notification read as under:--

"Notification?? No.????? S.R.O.1050(I)/95,????? dated 29th October, 1995.---In exercise of the powers conferred by subsection (2) of section 18 of the Customs Act, 1969 (IV of 1969), the Federal Government is pleased to levy a further regulatory duty on imports of goods appearing in the First Schedule to the said Act, as detailed below:

(i) the goods chargeable to a statutory or concessionary rage of zero per cent or sixty per cent statutory duty shall be charged a regulatory duty @ 5 per cent ad valorem on import in to Pakistan except the following, namely:---

(a) Wheat;

(b) Fertilizers;

(c) Power generation plants for which letters of support have been issued by the Government, up to 3,000 MW;

(d) Import of accompanied and unaccompanied baggage;

(e) Goods imported under diplomatic concessions, and

(f) Newsprint imported by publishers of newspapers and periodicals subject to production of a certificate from Ministry of Information and Broadcasting; and

(iii) the goods chargeable to statutory or concessionary rate other than zero per cent on the import into Pakistan shall be charged to a regulatory duty at the rate of ten per cent ad valorem except the following:---

(a) defence imports;

(b) goods chargeable to duty at the rate of sixty five per cent ad valorem; and

(c) the following P.O.L. products:

(i) Motor spirit regular

super and premimum class; (ii)

(ii) H.O.B.C.

(iii) M.T.B.E.

(iv) S.K.O.;

(v) H.S.D.;

(vi) L.D.O.;

(vii) J.P.I.;

(viii)J.P.4;

(ix) Furnace Oil; and

(x) Asphalt.

2. This Notification shall have effect from the 29th day of October, 1995."

3. On being challenged, the Hon'ble Supreme Court, in the case of Collector of Customs and others v. Ravi Spinning Ltd. and others (1999 SCMR 412), held the levy, under the above mentioned notification, to be valid and it was for that reason that the petitioners had not pressed their previous petitions.

4. The only argument of Mr. Aziz A. Shaikh, learned counsel for the petitioners, that, in the terms of the notification regulatory duty could be charged on the import of goods chargeable to statutory or concessionary rate of 0% duty and not on the goods importable free of duty, holds no water, inasmuch as practically there is no difference between terms 0% duty and `free of duty'. Both convey same meaning. In the Customs Act, 1969, there is no distinct or separate concept of Zero rated import as is the concept of zero rated supply in the Sales Tax Act, 1990. Under the latter Act, the concept of `Zero rated supply in the Sales Tax Act, 1990. Under the Latter Act, the concept of `Zero rated supply' was introduced only for the purpose of claiming adjustment or refund of input tax; whereas in the Customs Act there is no such scheme. `Zero per cent duty and duty and tree of duty' convey same ,meaning and are synonymous terms as far as the Customs Act, 1969 is concerned.

5. For the aforesaid reasons, we are clear in our mind that regulatory duty was rightly charged from the petitioners on the goods which, according to the First Schedule, were importable free of duty and, therefore, they are not entitled to its refund. Accordingly, all the four petitions, being meritless, are dismissed.

H.B.T./P-19/K???????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.