FAUJI CEMENT COMPANY LIMITED VS GOVERNMENT OF PAKISTAN through Secretary, Customs, Board of Revenue, Islamabad, 2014 PTD-SUPREME-COURT 2053 (2014)

(On appeal from the judgment dated 24-7-2001 passed by the High Court of Sindh, Karachi in Spl. C.A. No.66 of 1998)

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

----S. 31A---Effective rate of duty on goods, determination of---Date of import---According to S. 31A of Customs Act, 1969 date of import of goods determined the applicability of customs duty---Date on which a Letter of Credit was established or steps were taken in respect of the import of goods were not relevant for such purpose.

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

----S. 19---Concession available under a notification/Statutory Regulatory Order(S.R.O.)---Expiry of such notification/S.R.O.---Effect---After expiry a notification/S.R.O. the benefits thereunder could not be claimed.

Khawaja M. Farooq, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

M. Bilal, Senior Advocate Supreme Court and Raja Muhammad Iqbal, Advocate Supreme Court for Respondent No.2.

Date of hearing: 7th March, 2014.

ORDER

JAWWAD S. KHAWAJA, J.---We have heard learned counsel for the parties at length and have also gone through the impugned judgment and record with their assistance. The appellant namely Messrs Fauji Cement Company Limited impugns the judgment of the learned Division Bench of the High Court dated 24-7-2001. In relevant part, the said judgment held as under:--

"Nevertheless the text of the Notification, which has been brought to our attention by Mr. Raja Muhammad Iqbal, learned counsel for the respondent reads as under:--

"In exercise of the powers conferred by section 19 of the Customs Act (IV of 1969) and section 13 of the Sales Tax Act, 1990 and in supersession of this Ministry's Notification No.S.R.O.50(I)/92, dated 28-1-1992, the Federal Government is pleased to exempt such plant and machinery as is not manufactured locally and is imported during the period......." (underlining ours)

It is important to keep in view that the Notification only exempted such plant and machinery which was not manufactured locally."

2.Learned counsel for the appellant argued that the only issue which had been raised in the lower forum by the Customs Department was that because of CGO No.17/94 dated 30-10-1994, it had been determined that the plant/machinery imported by the appellant was locally manufactured. According to the learned counsel for the appellant, this determination could not have been made by the CBR itself because vide Notification No. S.R.O.484(I)/92 it had earlier been decided that the question as to whether the cement plant was locally manufactured would be determined by the Heavy Mechanical Complex. Thereafter, it was the Ministry of Industries, Government of Pakistan, which was given the authorization to certify whether or not such machinery was manufactured within Pakistan. On this basis, it was contended that the Customs Department have raised a new issue based on the duty of import of machinery and the applicability of section 31A of the Customs Act, 1969.

3.We are not persuaded by the argument of the learned counsel for the appellant because section 31A is part of a Statute and has to be given effect whether or not any issue was considered by the forums below. According to section 31A, the date on which a Letter of Credit was established or steps were taken in respect of the import of machinery are not relevant. It is the date of import which determines the applicability of customs duty. According to the learned counsel for the respondent-department, the import consignment of the appellant was imported on 10-1-1996. Learned counsel for the appellant does not have in his possession any document which would show that the import was prior to 30-6-1995 which was the date on which the S.R.O., referred above, expired. After expiry of the said notification the benefits thereunder could not be claimed by the appellant.

4.We, however, observe that the appellant had itself given an undertaking under the said notification wherein the date of import has been given as 10-1-1996. In these circumstances, it is clear that the concession of the notification was not available to the appellant.

5.Even in respect of the contention that a factual determination has not been made, we note that such determination had been made by the Tribunal as noted in the impugned judgment. The relevant part of the impugned judgment is reproduced as under:--

"In the instant case there is definite finding of fact recorded by the learned Tribunal to the effect that the appellants were not entitled to exemption because of kind machinery imported by them, was also being manufactured locally. The judgment in C.P. No.1244 of 1997 does not touch this issue at all. In view of the above, we are constrained to observe that only a question of fact being involved in respect of which there is concurrent finding of appropriate Tribunal it is not possible to interfere under section 196 of the Customs Act. This appeal is accordingly dismissed."

6.Considering the above circumstances, we find no justification for interfering in the well-reasoned Order of the High Court. As a consequence, this appeal is dismissed. No order as to costs.

MWA/F-2/SCAppeal dismissed.