1986 PLP 2089 (MLD)

Malik Muhammad Qayum, Dy. A.‑G. for Respondent. This order will dispose of four writ petitions registered as W.Ps 4120, 4125, 4135 and 5478, all of .1984. These have been taken together as common questions of fact and law arise in them.

2. The petitioners export knitted fabrics of manmade fibre. These fabrics are manufactured from metallic and nylon yarns which are both imported after payment of customs duty. On exporting knitted fabrics the petitioners become entitled to repayment of the customs duty earlier paid on the import of metallic and nylon yarns. The relevant notification of the Central Board of Revenue for the repayment of customs duty is S.R.O. 237(1)/77, dated 15th March, 1977. It has been issued under section 21(c) of the Customs Act. Apart from laying down the conditions upon which alone the repayment is to be allowed the notification also contains a table indicating the extent to which the repayment may be granted.

3. In accordance with the said notification the petitioners have been allowed repayment of customs duty on the export of knitted fabrics but not to the extent claimed by them. Their case is that irrespective of the amount of the customs duty actually paid on the importation of the metallic and nylon yarns they are entitled to repayment on the scale mentioned in the table given in the notification. This contention is obviously untenable. Clause (c) of section 21 of the Customs Act under which the notification in question has been issued reads as follows:

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21. Subject to such conditions, limitations or restrictions as it thinks fit to impose, the Board may, in such general cases as may be prescribed by rules or in particular cases by special order, authorize‑‑ (a) ******************** (b) ******************** (c) the repayment in whole or in part of the customs duties paid on the importation of any goods of such classes or descriptions as it may prescribe, which have been used in the production, manufacture, processing, repair or refitting in Pakistan of goods of such classes or descriptions as it may prescribe, provided such repayment shall not be made in respect of the class or description of goods for which drawback can be claimed under section

37. Quite obviously the word "repayment" as occurring in this clause implies refund or return of the duty actually paid and not, as the petitioners would have it, payment of an amount in excess of what was in fact paid while importing the raw material. It is difficult to construe the word "repayment" as occurring in the notification differently. To hold otherwise would make the notification as one of granting awards, and, from the language of the notification it is difficult to support such a construction.

4. It is also to, be noticed that under clause (c) of section 21 the Board is competent not to allow refund of the whole of the customs duty paid on the imported raw material. The words "to the extent" as used in the notification are quite obviously intended to lay down the upper ceiling of the refund. Thus if the customs duty paid is more than the amount of repayment worked out in accordance with the table given in the notification, it will be the later amount which would be refunded to the exporter. Section 37 of the Act to which the learned counsel has referred also does not allow to the exporter by way of refund anything beyond what he has actually paid by way of customs duty.

5. The learned counsel for the petitioners then contends that as a matter of practice the department has been allowing refund to other exporters far in excess of the customs duty actually paid by them. The correctness of this assertion has been challenged by the department which has categorically stated that there has been no repayment of any excess amount.. Learned' counsel for the petitioners was asked to cite a particular reference or examples in support of his assertion as he has not been able to do so. I am therefore, not prepared to take his assertion seriously.

6. For the reasons stated above, I find no merits in these writ petitions which are hereby dismissed in limine. H .B. T Petition dismissed.