HAIDER INDUSTRIES through Sole Proprietor VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, 2015 PTD-KARACHI-HIGH-COURT-SINDH 2447 (2015)

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

----S.1"8(3)---Regulatory duty---Import of goods----Imposition of regulatory duty, notification for---Discrimination---When impugned notification applied without discrimination to all importers of the goods of the same category across the board, it could not be said that the same was discriminatory.

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

----S.18(3)---Regulatory duty---Import of goods---Imposition of regulatory duty on imported goods to promote local industry of the same products---Policy issue within the domain of the Executive---High Court declined to delve into the merits of the exercise of power by the Executive to impose such regulatory duty.

Collector of Customs v. Flying Kraft 1999 SCMR 709; Pak Ocean v. Government of Pakistan 2002 PTD 2850 and Ajay Hasia v. Khalid Mujib Sehravardi AIR 1981 SC 487 distinguished.

(c) Customs Act (IV of 1969)-

----S. 18(5), proviso---S.R.O.18(I)/2015 dated 14th January, 2015-- General Agreement on Tariffs and Trade (GATT), Arts. XXIV, XXIX, clauses 5 & 7 & Preamble---Free Trade Agreement executed between Pakistan and China dated 24-11-2006, Arts. 7, 8 & Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Regulatory duty, imposition of---Legality---Bilateral Trade Agreements---Not protected under proviso to S. 18(5) of Customs Act, 1969---Petitioners who were importers of Cellular Mobile Phone and various iron and steel products impugned S.R.O. No.18(1) of 2015 ("Impugned Notification") whereby a regulatory duty had been imposed on Cellular Mobile Phone and various iron and steel products---Contention of petitioners that the proviso to S. 18(5) of the Customs Act, 1969 stipulated that the total cumulative incidence of customs duty leviable under Ss. 18(1), (3) & (5) of the said Act could not exceed the duty which had been agreed between the Government of Pakistan under multilateral trade agreements; that the Free Trade Agreement in question was an offshoot of the General Agreement on Trades and Tariffs ("GATT") which was a multilateral agreement and Pakistan and China were both signatories thereto, therefore, imposition of impugned regulatory duty would be in violation of GATT and proviso to S.18(5) of the Customs Act, 1969---Validity---Free Trade Agreement executed between Pakistan and China on 24-11-2006 was a bilateral trade agreement and not a multilateral trade agreement---Proviso to S.18(5) of the Customs Act, 1969, allowed protection to multilateral trade agreements only---Bilateral agreements or even bilateral agreements entered on the basis of or pursuant to or consistent with terms of multilateral agreements were not protected under proviso to S.18(5) of the Customs Act, 1969---Free Trade Agreement in question, which was a bilateral agreement, was therefore not protected under proviso to S.18(5) of the Customs Act, 1969---Imposition of the regulatory duty in the present was held to be legal---Constitutional petition was dismissed accordingly with the observation that Pakistan's obligations under the bilateral Free Trade Agreement with China could not be enforced domestically unless such bilateral agreement was incorporated into the domestic law through appropriate legislation by extending it the benefit of S. 18(5) of the Customs Act 1969, as was extended to the multilateral agreements.

Societe Generale De Surveillance S.A. v. Pakistan through Secretary Ministry of Finance Revenue Division, Islamabad 2002 SCMR 1694 and Messrs Indus Rags v. Government of Pakistan 2012 PTD 1293 ref.

Messrs Asim Wire Nut Bolt Industry v. Federation of Pakistan W.P. No.6559 of 2015 disagreed with.

Haider Waheed, Mrs. Navin Merchant, Imran Iqbal Khan, Ahmed Ali Hussain, Ayyaz Shoukat, Iqbal Salman Pasha, Saleem Ghulam Hussain, Ghulam Nabi Sher, Zain A. Jatoi, Ghulamullah. Aqeel Ahmed Khan and Muhammad Afzal Awan for Petitioners.

Zia-ul-Haq Makhdoom, Deputy Attorney-General Model Customs Collectorate.

Kashif Nazeer, Ali Waheed Khan, Deputy Collector and Ilyas Ahsan Khan for Respondents.

Dates of hearing: 7th and 8th May and 20th August, 2015.

JUDGMENT

SAJJAD ALI SHAH, J.---Through this Judgment we intend to decide all the listed petitions which., arise through similar facts and involve a common question of law. The petitioners are importers of Cellular Mobile Phone and various iron and steel products and have impugned S.R.O. No.18(1) of 2015 ("Impugned Notification") whereby a regulatory duty has been imposed at the rate Rs.200 per set on Cellular Mobile Phone and at 15% on billets, bars and wire rods and at the rate of 5 % on flat rolled products of iron or non alloy sheets galvanized plates and cold rolled coils.

2. Mr. Haider Waheed, appearing for some of the petitioners has submitted that in view of the Free Trade Agreement entered into and executed by the Governments of Pakistan and China ("FTA") the imposition of regulatory duty is in contravention to Section 18(5) of the Customs Act, 1969 ("the Act"). He submitted that the proviso to section 18(5) stipulated that the total cumulative incidence of customs-duty leviable under subsections (1), (3) and (5) cannot exceed the duty which has been agreed between the Government of Pakistan under multilateral trade agreements. According to the counsel since the FTA is an offshoot of the General Agreement on Trades and Tariffs ("GATT") which is a multilateral agreement and Pakistan and China are both signatories thereto, therefore, imposition of Regulatory Duty would be in violation of the said provision. Per learned counsel, the FTA was executed specifically to enforce the terms of GATT and therefore should be placed at the same pedestal as a multilateral agreement for the purposes of applying the proviso to Section 18(5) of the Act. He submitted that the said proviso was inserted through the Finance Act of 2007 to specifically cater for the FTA which had been executed between Pakistan and China on 24-11-2006. Lastly, learned Counsel stated that the GATT clearly provides that the rates 9f customs duty shall not increase from the point at which they stood at the time of entering a Free Trade Agreement.

3. Mrs. Naveen Merchant who also represents some of the petitioners while arguing along the same lines further submitted that the Impugned Notification was discriminatory inasmuch as it provided an unfair advantage to the local industry who were producing goods of a lower quality and in any event were unable to cater to the nationwide demand for such goods. She submitted that the Impugned Notification would have the effect of crippling the traders of imported items and render it impossible for them to trade in the open market. Per Learned Counsel the imposition of regulatory duty would have the effect of rendering imported goods twice as expensive as locally manufactured goods and such change was being effected without reasonable classification and justification. She relied on the judgment of the Supreme Court in the case of Collector of Customs v. Flying Kraft (1999 SCMR 709) and of this Court in the case of Pak Ocean v. Government of Pakistan (2002 PTD 2850) as well as of the Indian Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi (AIR 1981 Supreme Court 487)_ to submit that two essential ingredients were required to be fulfilled in order to pass the test of classification being intelligible deferentia and a rational relation to the object sought to be achieved by the act.

4. Rest of the learned counsel appearing for the petitioners adopted the arguments so advanced.

5. On the other hand Mr. Kashif Nazir as well as Mr. Zia-ul-Haq Makhdoom learned DAG appearing for the respondents submitted that the FTA was given effect under S.R.O. No.659(I)/2007 which only provided limited exemption on customs duty. He further submitted that the proviso to Section 18(5) of the Act cannot be relied upon by the petitioners since the same is only available for multilateral treaties and the effect thereof cannot be extended to the FTA which is a bilateral treaty. He submitted that the petitioners are still enjoying the benefit granted to them through S.R.O. 659(1)/2007 subject to the terms incorporated therein. He submitted that the purpose of GATT was to eliminate discrimination among member states whereas Article XXIV provided an exception to the underlying theme .of non-discrimination by allowing member states to enter into bilateral Free Trade Agreements. He submitted that the FTA was yet to be ratified through an act of Parliament and therefore lacked the force of law before the domestic Courts. To this end he relied on the judgments reported at 2012 PTD 1293, 2002 SCMR 1694 and PLD 1994 SC 693.

6. We have heard learned counsel for the respective parties, perused the record.

7. Since the Impugned Notification applies without discrimination to all importers of the goods in question across the board, therefore, we cannot agree with the submissions regarding the Impugned Notification being discriminatory and therefore reject the same. To promote local industry through imposition of a regulatory duty or otherwise is a policy issue which has always been considered as being within the power of the executive. That being the case, we are not inclined to delve into the merits of the exercise of such power and therefore the submissions regarding the inability of the local industry to cater to the nationwide demands become irrelevant. The case-law relied upon by the learned counsel is not relevant for the simple reason that in all the cases relied upon by the learned counsel the element of unequal or discriminatory treatment was found between similarly placed person i.e. importer of raw material and importer of furnished goods of same category, whereas, in the instant case imported raw material may it be for manufacturing or sale and locally procured raw material could not be treated similarly placed.

8. Coming to the central issue raised through these petitions, there is no dispute that the FTA is a bilateral agreement having been executed between Islamic Republic of Pakistan and People's Republic of China consistent with the provisions of Article XXIV of the GATT but not in consequent to or in compliance with Article XXIV. In such circumstances, we are not convinced that it should be held as being at par with GATT or any other multilateral treaty unless for allowing the benefit of proviso to Section 18(5) of the Act unless it specifically provides so.

9. Our findings with respect to GATT and FTA so far as they relate to the issue at hand are as follows:--

The purpose of GATT, as apparent from the preamble thereto appears to have been to formulate and enforce a uniform, non discriminatory structure of duties and levies across all member states. The preamble reads as follows:--

"Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce."

Accordingly Article I requires member states to formulate a structure which would place all member states at an equal pedestal while importing or exporting goods into or out of another member state. Article I reads as follows:--

"With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, * any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for -any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties."

Whereas clause 1(a) of Article II requires contracting parties for according no less favourable treatment than that provided in the appropriate schedule. Clause 1(a) reads as follows:-

"(a) Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement. "

Article XIII provides further reinforcement to Article I by prohibiting discrimination by way of quantitative restrictions. Clause 1 of Article XIII reads as follows:--

"No prohibition or restriction shall be applied by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation of any product destined for the territory of any other contracting party, unless the importation of the like product of all third countries or the exportation of the like product to all third countries is similarly prohibited or restricted."

Article XXIV appears to have been inserted as an exception and allows for preferential treatment amongst countries in certain circumstances which otherwise would have been violative of its intent. By way of example, Clause 11 of the said Article takes into account the geographical and historical proximity of Pakistan and India and allows these Countries to establish and enforce interim arrangements for preferential treatment for commerce. Clause 11 of Article XXIV reads as follows:--

Taking into account the exceptional circumstances arising out of the establishment of India and Pakistan as independent States and recognizing the fact that they have long constituted an economic unit, the contracting parties agree that the provisions of this Agreement shall not prevent the two countries from entering into special arrangements with respect to the trade between them, pending the establishment of their mutual trade relations on a definitive basis.

Within Article XXIV, further provisions have been made for Customs Unions and Free Trade Areas and the language used therein seemingly provides further exceptions to the general tone of GATT by way of allowing such Customs Unions and Free Trade Areas in certain circumstances. Clause 5 of Article XXIX reads as follows:--

"Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a Customs union or of a free-trade area or the adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area. Provided that"

"(a) ..

(b) with respect to a free-trade area, or an interim agreement leading to the formation of a free-trade area, the duties and other regulations of commerce maintained in each if the constituent territories and applicable at the formation of such free-trade area or the adoption of such interim agreement to the trade of contracting parties not included in such area or not parties to such agreement shall not be higher or more restrictive than the corresponding duties and other regulations of commerce existing in the same constituent territories prior to the formation of the free-trade area, or interim agreement as the case may be."

The words used in Clause 5 show that the formation of a Free-Trade Area is not mandated but allowed under GATT which otherwise would have been violative of the intent of GATT and of course discriminatory to the contracting parties. Clause 7 of the same Article further requires parties intending to form a Free Trade Area to issue notices to the remaining contracting states who will then submit recommendations to the intending parties regarding any Free Trade Agreement they may execute. Clause 7 reads as follows:--

"7. (a) Any contracting party deciding to enter into a customs union or free-trade area, or an interim agreement leading to the formation of such a union or area, shall promptly notify the CONTRACTING PARTIES and shall make available to them such information regarding the proposed union or area as will enable them to make such reports and recommendations to contracting parties as they may deem appropriate.

(b) If, after having studied the plan and schedule included in an interim agreement referred to in paragraph 5 in consultation with the parties to that agreement and taking due account of the information made available in accordance with the provisions of sub-paragraph (a), the CONTRACTING PARTIES find that such agreement is not likely to result in the formation of a customs union or of a free-trade area within the period contemplated by the parties to the agreement or that such period is not a reasonable one, the CONTRACTING PARTIES shall make recommendations to the parties to the agreement. The parties shall not maintain or put into force, as the case may be, such agreement if they are not prepared to modify it in accordance with these recommendations."

10. The FTA on the other hand has no doubt been executed to promote commerce and industry between Pakistan and China. To an extent, there are material similarities between certain clauses of the FTA and GATT and the former also makes extensive references to the latter. However, it cannot be said that either China or Pakistan were under an obligation to enter into the FTA in view of GATT. Having said that, the FTA does hold itself out as an agreement executed with a view to attain objectives similar to those which have been addressed by GATT. The preamble to the FTA reads as follows:--

"The Government of the Islamic Republic of Pakistan ("Pakistan") and the Government of the People's Republic of China ("China") hereinafter referred to as "the Parties";

Committed to strengthening the special bonds of friendship and cooperation between their countries;

Building on their respective rights and obligations under the WTO Agreement and other multilateral, regional and bilateral instruments of cooperation;

Resolved to promote reciprocal trade through the establishment of clear and mutually advantageous trade rules and the avoidance of trade barriers;

Recognizing that this Agreement should be implemented with a view toward raising the standard of living, creating new job opportunities, and promoting sustainable development in a manner consistent with environmental protection and conservation; and

Committed to promoting the public welfare within each of their countries; Have agreed as follows"

"Article 1 Establishment of a Free Trade Area

The Parties to this Agreement, consistent with Article XXIV of the General Agreement on Tariffs and Trade, 1994, hereby establish a free trade area."

Whereas Article 7 of the FTA incorporates Article III of GATT with respect to the mutual obligations of Pakistan and China under the FTA. Article VII reads as under:

"Article 7 National Treatment

Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT, 1994, including its interpretative notes, and to this end Article III of GATT 1994, and its interpretative notes, are incorporated into and made part of this Agreement, mutatis mutandis."

Article III of GATT in turn restrains member states from imposing taxes, charges or other restrictions on imported products with a view of protecting or promoting the local manufacturers. Several other clauses within GATT itself provide exceptions to this clause but are presently not material to the issue at hand. Clauses 1 and 2 of Article III read as follows:--

"1. The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production.*

2. The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1."

Clearly the essence of GATT is reciprocal arrangements for reduction of tariffs or reduction of restrictions between member states. The implementation of certain clauses of GATT would therefore no doubt require the execution of further bilateral or multilateral agreements between the member states. This has led to the establishment of various free-trade areas. Pakistan itself has entered into agreements with Sri Lanka and Malaysia in addition to China and it appears that these agreements have been executed with a view to implement the provisions of Article III in particular. This appears to us the rationale behind Article XXIV of GATT which allows for the formation of such free-trade areas in consultation with other member states. To this end, Article 8 has been incorporated into the FTA which provides that:

"Except as otherwise provided in this Agreement, each Party shall progressively eliminate its import customs duties on goods originating in the territory of another Party in accordance with Annex 1."

Annexure-1 on the other hand contains goods falling within different HS Codes into different categories. Categories IV and V are relevant as the former consists of each Country's concession list and the latter is comprised of those products where no concession is offered by the respective contracting party. This annex requires the periodical reduction of tariff on goods falling within category IV to 20 % over a period of 5 years.

To implement Article 8 of the FTA in a manner envisaged by Annex I thereto, the Government of Pakistan issued notification S.R.O. 659(1)/2007. A perusal of this SRO shows the same gradual reduction of tariff over certain imported goods originating in China as has been described in Annex I with respect to Category IV. As per the respondents this SRO is still in field and fulfills Pakistan's obligations under the FTA.

11. As per the petitioners, the FTA has been enforced domestically through the introduction of the proviso to section 18(5) through the Finance Act of 2007. It is therefore their case that the reduction of tariff mentioned in Category IV must result in a cumulative reduction of all duties imposable under sections 18(1), (3) and (5) proviso to subsection (5) of section 18 reads as follows:--

"Provided that the cumulative incidence of customs duties leviable under subsections (1), (3) and (5) shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements."

The tariffs preset-lay in question have been agreed through a bilateral agreement (FTA) by taking the benefit of exceptional clause 5 of Article XXIV of GATT a multilateral agreement which admittedly is being enforced by the Government of Pakistan through S.R.O. 659(1)/2007 and the petitioners are enjoying the benefit of this concessionary tariff on the imports from People's Republic of China since year, 2007. In absence of Article XXIV of the GATT this would have been in direct violation of the purpose and intent of GATT. In these circumstances, we have no hesitation to hold that though GATT envisages execution of bilateral agreements between its member States and the F.T.A. executed between the People's Republic of China and Islamic Republic of Pakistan is consistent with the Provision of GATT but, this fact, would not change the status of a bilateral agreement into multilateral and would entitle its executors to the protection available under the proviso to section 18(5) of the Act.

12. The language of section 18(5) is so clear and unambiguous that it allows no room for accommodating a bilateral agreement. Neither is there any absurdity in the language of this section which would allow it to be extended to bilateral agreements entered on the basis of or pursuant to or consistent with terms of multilateral agreements, nor we see any reason to depart from the settled rule of gathering the legislative intent from the plain reading of the statute itself.

13. We are aware and concerned regarding Pakistan's obligations under the bilateral FTA with China. However, such obligations cannot be enforced domestically unless such bilateral agreement is incorporated into the domestic law through appropriate legislation by extending it the benefit of section 18(5) of the Act, 1969 as extended to the multilateral' agreements. Our view is fortified with the judgment of the Apex Court in the case of Societe Generale De Surveillance S.A. v. Pakistan through Secretary. Ministry of Finance Revenue Division, Islamabad (2002 SCMR 1694) wherein it was held that:--

"Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into the laws of the Country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so.

It may be significantly mentioned here that according to Article 175(2) of the Constitution of Islamic Republic of Pakistan, no Court has any jurisdiction unless conferred by or under any law or the Constitution, therefore, treaty unless was incorporated into the law so that it become part of Municipal Laws of the Country, no Court shall have jurisdiction to enforce any right arising therefrom."

14. Even in the case of Messrs Indus Rags v. Government of Pakistan (2012 PTD 1293) the enforcement of this very FTA between Pakistan and China was sought by asserting that in accordance with the FTA custom duty in respect of the goods mentioned in category-V had to remain static and the increase of duty by 10% was illegal. The Court while holding that "FTA was neither law of Pakistan nor incorporated in any law nor had effect to alter prevailing law of Pakistan" declined to issue writ.

15. Though neither pleaded before us nor very relevant but non-inclusion of bilateral agreements executed in consequent to or consistent with multilateral agreement in proviso to Section 18(5) appears to be deliberate as there were multilateral agreements such as South Asian Free Trade Area (SAFTA), (Article 7 whereof envisages a tariff reduction in a manner similar to FTA between China and Pakistan) as well as bilateral agreements such as FTA on the date when proviso to Section 18(5) was introduced: The legislature could have provided the same treatment to the bilateral agreement arising out of or executed in consequent to or consistent with the multilateral agreement but, as stated earlier, the omission appears to be deliberate and in case it was an omission even then "Omission in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular case is omitted from the terms of a statute, even though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the Court cannot include the omitted case by supplying the omission. This is equally true where the omission was due to the failure of the Legislature to foresee the missing case. As is obvious, to permit the Court to supply the omissions in statutes, would generally constitute an encroachment upon the field of the Legislature.

Where the statute's meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as though intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted words, interpolation is improper, since the primary source of the legislature intent is in the language of the statute.". Reference Messrs State Cement Corporation of Pakistan v. Collector of Customs 1998 PTD 2999).

16. Mr. Haider Waheed has also placed on record the decision of the Lahore High Court in W.P. No.6559 of 2015 (Messrs Asim Wire Nut Bolt Industry v. Federation of Pakistan) dated 13-5-2015 whereby the Lahore High Court has held that the FTA being an offshoot of GATT is covered by the proviso to Section 18(5) of the Act. With respect, we disagree with this decision for the reasons which have been stated above.

17. All the captioned petitions stand dismissed with no order as to costs. Nazir is directed to release the Regulatory Duty deposited by the petitioners in the shape of Pay Order/Bank Guarantee or in any other form in favour of the respondent/Custom Department.

MWA/H-15/SindhPetitions dismissed.