AGRO TRACTORS (PRIVATE) LIMITED VS FECTO BELARUS TRACTORS LIMITED, 2007 PTD-SUPREME-COURT 2316 (2006)

(On appeal from the judgment dated 4-5-2006 of Sindh, High Court at Karachi passed in C.P. No.D-304 of 2006).

Customs Act (IV of 1969)---

----S.69---Constitution of Pakistan (1973), Art.185(3)---Question raised was as to whether on the basis of the doctrine of "promissory estoppel" importer was entitled to exemption from. customs duty and that in the meanwhile the Bank guarantee, equal to the duty to the extent goods imported, which would be worked out by Central Board of Revenue, be kept intact out of Bank guarantee, which was pending before the Secretary Ministry of Industries in view of the new scheme introduced, which had been abandoned, could be released along with additional guarantee which was furnished in pursuance of said order---Leave to appeal was granted by Supreme Court to examine the question.

Chaudhry Mushtaq Ahmad Khan, Senior Advocate Supreme Court, Mahmood A. Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ms. Naheeda Mehboob Ellahi, D.A-G. and Mumtaz Ahmad, (Legal) C.B.R. for Respondents.

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition has been filed for leave to appeal, challenging the judgment dated 4-5-2006 passed by High Court of Sindh at Karachi in Constitutional Petition No.D-304 of 2006.

2. The Federation of Pakistan on the recommendation of E.C.C. introduced a scheme for importing ten thousand Tractors on zero tariff, all subject to installation of manufacturing plant. Petitioner applied for permission to install plant, as such succeeded in getting the permission to import 625 Tractors on zero tariff, out of which in the first batch 156 Tractors were imported after observing codal formalities. In the meanwhile the policy was brought under challenge before the High Court of Sindh at Karachi. Learned Division Bench by the impugned judgment accepted the petition holding that the policy is not transparent. Against this very judgment petitioner and other persons including Federation of Pakistan preferred petitions for leave to appeal, which has been disposed of separately except the one in hand. The Federation of Pakistan has withdrawn the petition for leave to appeal, in view of statement filed on behalf of Ministry of Industries by .the D.A.-G. Contents of which available in the connected file C.P.L.A. No.469 of 2006 are reproduced here in below:---

(1) That petitioner on instructions from Joint Secretary Ministry of Industries would like to withdraw the abovementioned petitions without prejudice to petitioners' status/policy and in view of the change in the Tariff Policy of the Government and withdrawal of petitioners by the beneficiary importers.

(2) It is therefore humbly requested that permission to withdraw on account of the change in Tariff Policy be allowed.

3. In view of the above statement C.P.L.A. No.469 of 2006 filed by Federation of Pakistan has been disposed of.

4. Now the petitioner (Agro "Tractors) has also submitted a written statement contents thereof are reproduced hereunder:---

(1) In view of the dismissal of the petitions filed by the Federation of Pakistan as not pressed, scheme in question having already expired by afflux of time i.e. 30th September, 2006 interaction of New "New Zero Duty import of Tractors Scheme", for the year 2006-2007. The petitioner does not press this petition to the extent of challenge to the validity of scheme having been set aside as being non-transparent, and claims release of 156 Tractors on the principle of promissory estoppel without payment of Custom duty and other charges for which a Bank guarantee has been filed before this Hon. Court, hence prayer for release of the said bank. guarantee dated 24-6-2006 as well as other bank guarantees furnished to the Ministry of Industries Production and Special Initiatives as he does not want to avail the scheme in question, which even otherwise has been declared as illegal and without a lawful drafting by the Hon. Sindh High Court, which has already been upheld by this Court.

(2) As regards amount of damage etc. amounting about Rs.42 Lacs, petitioner shall move the "Qasim Port, &shipping" as the same .has been paid on account of the "Act of the Court".

(3) It is hence, most respectfully prayed that the petition may kindly be disposed on in the above terms:

5. Petitioner stated that leave to appeal be granted to examine the question, whether on the basis of the doctrine of promissory estoppel, petitioner is entitled for exemption from the duty. He further stated that in the meanwhile the bank guarantees equal to the tax to the extent of 156 Tractors, which will be worked out by the C.B.R., be kept intact out of bank guarantee, which is pending before the Secretary Ministry of Industries, in view of the new scheme introduced now which has been abandoned may be released along with additional guarantee which was furnished in pursuance of order dated 1-6-2006.

6. In view of the submissions made by the learned counsel for the petitioner, leave to appeal is granted to examine the above question. However, in the meanwhile the bank guarantee furnished by the petitioner in pursuance of order dated 1-6-2006" for the satisfaction of this Court is discharged and the Secretary Ministry of Industries is also directed to discharge the bank guarantee after deducting the amount of the tax, which will be worked out by the C.B.R. to the extent of import of 156 Tractors on or before 31st January, 2007, subject to final decision. As far as the recovery of damages is concerned, the petitioner may approach the concerned quarter for the redressal of the grievance.

H.B.T.??/A-35/SCLeave granted.