COLLECTOR OF CUSTOMS, LAHORE VS Mrs. SHAHIDA ANWAR, 2012 PTD-SUPREME-COURT 1867 (2012)

(On appeal from the order dated 17-4-2009 of the Lahore High Court, Lahore passed in W.P. No.18251 of 2005).

Import Policy Order 2005-2006---

----Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2005, R. 3(1)---Import Policy Order 2004-2005---Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2004, R. 3(1)---Constitution of Pakistan, Art.185(3)---Retrospective effect of Rule 3(1) of Personal Baggage, Transfer of ResidenceandGiftSchemes(Import of Vehicles) Rules, 2005---Scope---Beneficial interpretation, principle of---Scope---Import of vehicle under the gift scheme---Import Policy Order 2004-2005, envisaged that vehicle to be imported under the gift scheme should be of a model which was not more than 2 years old, prior to the import, whereas subsequent Import Policy Order of 2005-2006, increased the said period to 3 years---Custom authorities (petitioner) confiscated the vehicleoftheimporter(respondent)onthebasisthatitsmodel was 3 years old at the time of import whereas Import Policy Order of 2004-2005 provided a period of 2 years---Vehicle was released after payment of fine and the importer filed constitutional petition before the High Court, which was allowed on the grounds that subsequent Import Policy Order of 2005-2006, provided a period of 3 years to avail the gift scheme and the vehicle in question pertained to that period, therefore Import Policy of 2005-2006 would have retrospective effect and confiscation order was not legally tenable---Contentions of Custom authorities (petitioners) were that both the Import Policy Orders were independent and covered different periods; that there was no reference in the Import Policy Order of 2005-2006 that it had any nexus with or impact or effect on the earlier Import Policy Order of 2004-2005, therefore, principle of beneficial interpretation qua retrospectively would be inapplicable---Validity---Before any action was initiated by the Custom authorities against the importer, a new Import Policy Order of 2005-2006 had come into force, in which the period of import of a vehicle was increased from 2 years to 3 years---Subsequent Import Policy Order of 2005-2006, in circumstances of the present case, could be given beneficial interpretation and retrospective effect accordingly, which was exactly what had been done by the High Court---Petition for leave to appeal was dismissed, in circumstances.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Anoud Power Generation Limitedandothersv.FederationofPakistanandothersPLD 2001 SC 340 rel.

Izhar-ul-Haque, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 20th June, 2012.

ORDER

MIAN SAQIB NISAR, J.---The respondent imported a vehicle under the gift scheme vide I.G.M. dated 7-6-2005. For the purposes of availing the said gift scheme it was envisaged by the Import Policy Order 2004-2005 that the vehicle should be of model not more than 2 years prior to the import. However, vide Import Policy Order 2005-2006 which was enforced on 21-7-2005, the above period was increased to 3 years. Be that as it may, on 5-10-2005 the petitioner department issued a notice to the respondent that the vehicle is not covered by the 2 years period and in fact is a 3 year old model, therefore, why it should not be confiscated. After adjudication order-in-original was passed against the respondent confiscating the car which order was challenged by the respondent and subject of payment of a fine the car was released to the respondent. The respondent challenged the afore-said order by filing a constitutional petition before the learned High Court which has been allowed vide impugned judgment dated 17-4-2009. The learned Judge in Chambers by relying upon the judgments reported as Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others (1992 SCMR 1652) and Anoud Power Generation Limited and others v. Federation of Pakistan and others (PLD 2001 SC 340) has held that as thesubsequentImportPolicyOrder2005-2006providedaperiod of 3 three years to avail the benefits of gift scheme and the vehicle of the respondent pertains to this period, therefore, the latter policy would have retrospective effect and the confiscation order passed by the adjudicating authority was not legally tenable.

2.Learned counsel for the petitioners contends that both the Import Policy Orders are independent; they cover different periods; there is no reference in the subsequent Policy Order 2005-2006 that it has any nexus with or impact or effect on the earlier Policy Order, hence the principle of beneficial interpretation qua retrospectivity would be inapplicable. The judgments to which reference has been made by the learned Judge in Chamber are distinguishable in their own facts. It is argued, that a subsequent notification would not have an automatic retrospective effect rather it had to be spelt out from the notification itself that it has such an impact upon the earlier notification.

3.We have heard the learned counsel for the petitioners and find that before any action was initiated by the petitioner against the respondent, a new Policy Order has come into force on 31-7-2005 in which the period for the import of a vehicle was increased from 2 years to 3 years. Obviously in the light of the law laid down in the judgments supra, such notification by all means can be given a beneficial interpretationandretrospectiveeffectaccordingly,whichisexactly whathasbeendone bythelearnedJudgeinChambers.Resultantly, we do not find any merit in this petition which is hereby dismissed and leave refused.

MWA/C-9/SCPetition dismissed.