NIAZ MUHAMMAD VS FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1517 (2008)

(a) Interpretation of statutes---

----Substantive law and procedural law---Retrospective effect---Principles---Statutes dealing with substantive law are prospective and those dealing with procedural law are retrospective---In certain cases if procedural law affects vested right it operates prospectively and not retrospectively.

(b) Interpretation of statutes---

----Statutory rules and notifications---Comparison---In case of conflict between statutory rules and notifications, statutory rules prevail---lf statute conveys clear meaning, it is not necessary to introduce any other policy by way of administrative order diminishing efficacy of statute.

(c) Customs Act (IV of 1969)---

----Ss.31 (A) & 179 (1)---S.R.O. 696 (I)/2006, dated 1-7-2006---Import Policy Rules, 2005-06, R. 3 (4)---Constitution of Pakistan (1973), . Art.199---Constitutional petition---Date of import---Determination---Rate of duty---Applicability---Retrospective effect of S.R.O. 696 (I)/2006, dated 1-7-2006---Petitioners intended to clear vehicles in question on the basis of authority letter issued by importers in their favour---Plea raised by petitioners was that invoice of consignment, bill of lading, export permission certificate and goods declaration were prior in date to 1-7-2006, therefore, provisions of S.R.O. 696 (I)/2006, dated 1-7-2006, were not applicable retrospectively---Validity---Clearance of subject vehicles was examined after presentation of G.D. on 30-6-2006, and importers had qualified the scheme under Import Policy Rules, 2005-2006 because condition inserted in Policy Order 2005-2006 by amendment through S.R.O. 696 (I)/2006, dated 1-7-2006 would apply to vehicles arriving on or after 1-7-2006.and not retrospectively-Even otherwise S.R.O. 696(I)/2006, dated 1-7-2006, by virtue of its clause (2) was made effective on 1-7-2006---High Court directed the authorities to examine subject vehicles in terms of law prevailing at that particular point of time considering all aspects of date of invoice, bill of lading, export permission certificate and G.D. filed by importers and if there was no prohibition in law for import of subject vehicle then duty and taxes payable be assessed as soon as possible---High Court further directed the authorities to examine status of importers under R.3 (4) of Import Policy. Rules, 2005-06, and authority given by importers to petitioners---Petition was disposed of accordingly.

Ch. Muhammad Iqbal, Ch. Waseem Iqbal, Sohail Muzaffar and Ms. Fozia Rasheed for Petitioners.

Raja Muhammad Iqbal for Respondent.

Date of hearing: 30th January, 2008.

JUDGMENT

MRS. YASMIN ABBASEY, J.---By this judgment we intend to dispose of above petitions as facts and law applicable in all these petitions are identical.

Petitions arose out of the order of Customs Authorities assessing the value of subject consignment on the basis of S.R.O. 696(I)/2006, dated 1-7-2006 whereby petitioner were asked to pay 30% fine in terms of S.R.O. 574(I)/2006, dated 2-3-2006.

According to petitioners vehicle in question was released after deposit of the entire amount of the penalty claimed by customs authorities with the Nazir of this Court., Hence by these petitions, application of S.R.O. 696(1)/2006, dated 1-7-2006 and to adjudicate the case in terms of S.R.O. 574(I)/2006, amended vide S.R.O. 179(I)/2006, as expressed by Assistant Collector of Customs (Appraisement) has been challenged.

It is argued by learned counsel for the petitioners that invoice of subject consignment, bill of lading, export permission certificate, goods declaration are prior in date to 1-7-2006 therefore, in such circumstances S.R.O. 696(I)/2006 issued on 1-7-2006 with specific term and condition that it shall apply to the vehicles arriving on or after 1-7-2006, which prima facie is of prospective nature cannot be made effective retrospectively.

Of and on it is expressed by apex Court that while interpreting statute and its retrospectively the material consideration is that whether the statute encroaches upon the vested rights of citizen or not. Statutes dealing with substantive law are prospective and those dealing with procedural law are retrospective, but in certain cases if procedural law affects the vested right it operates prospectively and not retrospectively.

According to learned counsel for respondent vehicle more than 5 years old is not importable as per amended import policy order, 2005-2006 vide S.R.O. 696(I)/2006, dated 10-7-2006, reference has also been made to office memorandum, dated 18-8-2006 relating to import of "vehicles more than 5 years old imported under Transfer of Residence Scheme" whereby Prime Minister had permitted to release those vehicles which were shipped on or before 5-6-2006, even though they might had arrived in Pakistan later than 1st July, 2006. Therefore, petitioners' vehicle shipped after 5-6-2006 in view of directive of Prime Minister cannot be allowed be released under gift scheme.

Question that whether any administrative order can overstep the guaranteed right of a person acquired by him under an enactment, because in case of the administrative decision, there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh submission and argument or to collect any evidence or to solve any issue, as is appearing in office memorandum of 18-8-2006.

This office Memorandum does not reflect that while approving the proposal of C.B.R., Import Policy Rules, 2005 Appendix "E" and S.R.O. 696(I)/2006, dated 1-7-2006 were examined or not. Therefore, in conflict of between two, statutory rules will prevail and if a statute conveys clear meaning, it is not necessary to introduce any other policy by way of an administrative order diminishing efficacy of statute.

Next argument of learned counsel for respondent is as per section 31(A) of Custom! Act, the date of assessment would be counted from the date when importers will file declaration of goods under section 179(1) of Customs Act. For ready reference section 31(A) of Customs Act, is reproduce as under:-

"31A, Effective rate of duty, (1) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purpose of sections 30 and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under section 18 and the amount of duty that may have become payable in consequences of the withdrawal of the whole or any part of the exemption or concession from duty whether it was before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof".

(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange at which any foreign currency is to be converted into Pakistan currency shall be the rate of Exchange in force on the date immediately preceding the relevant date referred to in sections 30, 30A or 31.

If subject consignment is examined in the light of section 31(A) of Customs Act, at that particular time i.e., before July, 2006 by virtue of Import Policy Order, 2005-2006 Appendix `E' vehicle means "passenger car, bus, van, trucks, pick ups including 4x4 vehicles. As per sub-rule (2) of Rule 2 "vehicles may be imported as personal baggage or on Transfer of Residence or as gift". Sub-Rules (3) and (4) of Rule 3 of the very scheme, 2005 says that "for gifting a vehicle or importing under transfer of residence the minimum stay aboard shall be at least 700 days during the past three years.

So even if in the light of arguments advanced by learned counsel for respondent, if clearance of subject vehicle is examined after presentation of G.D. on 30-6-2006, importers have qualified the scheme under Import Policy Rule, 2005-2006 because condition inserted in Policy Order 2005-2006 by amendment through S.R.O. 696 of 2006 will apply to the vehicles arriving on or after 1st July, 2006 and not retrospectively. Even otherwise very S.R.O. 696 of 2006 by virtue of Clause (2) of it was also made effective on 1-7-2006.

So far objection raised that petitioners do not hold proper power of attorney on behalf of importers, nor any declaration of transfer of their residence has been filed by the importers with the Customs Authorities as required under sub-rule (5) of Rule 3 of Rules, 2005, therefore, too import of vehicle is in violation of Rules, 2005 Appendix E has substance therein.

In reply, it is contended by learned counsel for petitioners that by amendment through S.R.O. 696 of 2006 condition Nos.3(1) and 5 have been withdrawn, therefore, importers were under no obligation to file declaration of transfer of his residence but these arguments do not hold any weight because petitioners cannot be allowed to approbate and reprobate in the same breath. At one end they are challenging the applicability of S.R.O. 696(1)/2006 on the imported vehicle, while on the other hand they are trying to take benefit of very S.R.O., to absolve themselves from the burden of non-filing of declaration of transfer of residence by importers. Status of petitioners, that in what capacity they are holding power of attorney on behalf of importers have also not been explained satisfactorily.

In view of above discussion petitions are disposed of in terms that:--

(1) The Departmental officers are directed to examine the subject vehicle in terms of law prevailing at that particular point of time considering all aspects of date of invoice, bill of lading, export permission certificate and G.D. filed by the importers and if there is no prohibition in law for import of subject vehicle then the duty and taxes payable be assessed as soon as possible.

(2) Department will also examine the status of petitioners in terms of sub-Rule (4) of Rule 3 of Appendix "E" of Import Policy Rules, 2005-2006, and the authority given by the importers to petitioners.

3. Petitioners have already deposited fine of 30% with the Nazir of this Court and vehicle have been released. In cases petitioners finally succeeds in proving their cases fine deposited by them be refunded to the petitioners within one month of such claim.

Notwithstanding the above direction, the petitioners if aggrieved by the order passed by the custom officials shall be at liberty to pursue their remedy against such order available to them in law.

M.H./N-19/KCase remanded.