1994 PLP 2123 (SCMR)

versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No. 1358 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.241 of 1994 M/s. PEL APPLIANCES (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No. 1604 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.242 of 1994 M/s. GADOON PACKING (PVT.) LTD. ‑‑‑Petitioner versus CENTRAL BOARD OF REVENUE and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1356 of 1991 of Peshawar High Court, Peshawar). INDUSTRIAL CHEMICALS (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 3 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1764 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.250 of 1994 M/s. MUHAMMAD SHAFIQ, MUHAMMAD AFZAL INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal, from the judgment dated 15‑5‑1994 in W.P. No.1078 bf 1992 of Peshawar High Court, Peshawar). Civil Petition No.254 of 1994 M/s. PREMIER ALLIANCE INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1589 of 1991 of Peshawar High Court, Peshawar). M/s. DIAMOND INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1265 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.543 of 1994 M/s. MEHRAN COMFORTS (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No. 1509 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.547‑L of 1994 M/s. YAQOOB INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner versus PAKISTAN through Secretary, Finance, Islamabad and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No. 1951 of 1991 of Peshawar High Court, Peshawar). Civil Petition 1Vo.548‑L of 1994 M/s. HAYAT INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1357 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.583‑L of 1994 ADIL POLY PROPYLENE PRODUCTS LTD. ‑‑‑Petitioner versus GOVERNMENT OF PAKISTAN and 5 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1468 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.595‑L of 1994 M/s. DIAMOND CORPORATION (PVT..) LTD. ‑‑‑Petitioner versus PAKISTAN through Secretary, Finance, Islamabad and 4 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No.1646 of 1991 of Peshawar High Court, Peshawar). Civil Petition No.596‑L of 1994 M/s. CRESCENT INDUSTRIAL (GADOON) ENTERPRISES (PVT.) LTD. ‑‑‑Petitioner versus PAKISTAN through Secretary, Finance and 4 others‑‑‑Respondents (On appeal from the judgment dated 15‑5‑1994 in W.P. No. 1645 of 1991 of Peshawar High Court, Peshawar). Civil Petitions Nos. 221, 123‑P, 135‑P, 137‑P, 140‑P to 144‑P, 146‑P, 149‑P, 228‑P to 232, 234, 236 to 243, 245, 250, 254, 542‑L, 543, 547‑L. 548‑L, 583‑L, 595‑L and.596‑L of 1994, decided on 15th June, 1994. (a) Sales Tax Act (1990)‑‑‑ ‑‑‑‑S. 6‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to consider as to whether it was correct to say that by using words "charged and paid" in S. 6, Sales Tax Act, 1990, the whole Customs law would apply. (b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Arts. 73 & 185(3)‑‑‑Leave to appeal was granted to consider as to whether amendment could be made in fiscal law by Money Bill which did not go to the Senate and what was the scope of Money Bill. (c) Customs Act (IV of 1969)‑‑‑ ‑‑‑‑S. 31‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to consider whether matter fell outside the scope of S. 31‑A of the Customs Act, 1969 by invocation of doctrine of legitimate expectations. S. Sharifuddin Pirzada, Senior Advocate Supreme Court with Ch. Fazle Hussain, Advocate‑on‑Record for Petitioner (in C.P. No.221 of 1994). Abdul Hakim Kundi, Advocate Supreme Court with Abdul Hamid Qureshi, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 134‑P and 135‑P of 1994). Zahoor Qureshi Azad, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 137‑P and 140‑P to 142‑P of 1994). Abdul Hamid Qureshi, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 143‑P and 144‑P of 1994). Qazi Muhammad Anwar, Advocate Supreme Court with Zahoor Ahmed Azad, Advocate‑on‑Record for Petitioner (in C. P. No. 146‑P of 1994). Noor Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner (in C.P. No. 149‑P of 1994). Abid Hussain Minto, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 228 to 231 of 1994). M. Sardar Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 232 and 250 of 1994). Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner (in C.P.No.234 of 1994). Qamarul Islam Abbas, Advocate Supreme Court with M. Anwar H. Mir, Advocate‑on‑Record for Petitioner (in C.P. No.245 of 1994). Abdul Latif Yousuf Zai, Advocate Supreme Court with A. Hamid Qureshi, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 236, 238, 240 to 242 of 1994). A. Hamid Qureshi, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.237 and 239 of 1994), Syed Afzal Haider, Advocate Supreme Court with S. Abul Asim Jafferi, Advocate‑on‑Record for Petitioners (in C.Ps.Nos. 254 and 543‑L of 1994) . Zaheer Ahmed Khan, Advocate Supreme Court with Ejaz Ahmed Khan, Advocate‑on‑Record for Petitioner (in C.P.No.542‑L of 1994). Mirza Hafizur Rehman, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.547‑L of 19941. Ejaz Hussain Batalvi, Senior Advocate Supreme Court with M. Aslam Chaudhry, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.548‑L of 1994). Sh. Salahuddin, Advocate‑on‑Record (absent) for Petitioner (in C.P.No.583‑L of 1994). Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioners (in C.Ps. Nos. 595‑L and 596‑L of 1994). S.M. Zafar, Senior Advocate Supreme Court, Jehanzeb Rahim, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No.3 (C.B.R. in all the Petitions). Nemo for the Remaining Respondents. Date of hearing: 15th June, 1994. SAJJAD ALI SHAH, C J.‑‑‑For the reason that facts and points of law are identical, these petitions for leave to appeal are being heard together. In "Gadoon Amazai" area in District Swabi, Government of Pakistan banned cultivation of poppy crops and decided to set up Industrial Estate to provide to the local people job opportunities. In order to attract the investors to establish industries in such remote and backward area, package of incentives was provided in the form of exemptions of payment of customs duties, sales tax on the machinery, raw material and components. Vide Notification S.R.0.517(I)/$9, dated 3rd June, 1989 and S.R.0.481(1)/88, dated 26‑6‑1988, abovementioned industrial area was exempted from whole of the customs duty and sales tax leviable subject to the conditions as under:‑‑ (i) the manufacturer shall have suitable in house facilities to manufacture the items in respect of which he claims exemption under this notification; , (ii) the manufacturer shall furnish to the Chief, Survey and Rebate or any other officer authorised by the Central Board of Revenue in this behalf in the prescribed form the list of items that he is manufacturing alongwith the details of raw materials and components required and the Chief or such authorised officer in consultation with the Collector of Customs or the concerned Government Department will certify the annual capacity of the industrial unit for the manufacture of goods and total annual requirements of the various types of raw materials and components alongwith the quantity required for the manufacture of each item; (iii) in case when concession is claimed on components, the manufacturer shall chalk out deletion programme spreading over a maximum period of five years within which period he shall achieve a minimum deletion to the extent of 75 % of the C&F value of the inputs of the manufactured items, and the continued availability of the exemption under this notification shall be contingent upon (a) the achievement of progressive annual deletion as approved by the Central Board of Revenue or the Ministry of Industries as the case may be and (b) use of locally manufactured deleted items; (iv) at the time of import of raw materials and components the manufacturer shall make a written declaration on each copy of the bill of entry to the effect that the raw materials and components have been imported in accordance with this entitlement in terms of condition (ii) above; (v) the manufacturer shall furnish to the Collector of Customs bank guarantee equivalent to the customs‑duty and sales tax leviable on each consignment subject to the satisfaction of the Collector of Customs; (vi) the manufacturer shall maintain record of the raw materials and components and the items manufactured out of them in each form as may be prescribed by the Central Board of Revenue; (vii) the manufacturer shall, within one year of the date of importation of the raw materials and components, apply to the Collector of Customs for discharging the bank guarantee, the application being supported by a certificate in Form set out below issued by the Assistant Collector, Customs and Central Excise, within whose jurisdiction the manufacturing unit is located; and (viii) the manufacturer shall maintain in Form II set out below a record of the sale of the items manufactured under this notification and shall produce, on demand, such record and other evidence of sale, as tray be required for inspection by an officer of Customs not below the rank of Assistant Collector of Customs in whose jurisdiction the manufacturing unit is located or any other office authorised by the Central Board of Revenue in this behalf."

2. Acting on the recommendations mentioned above, petitioners invested huge amounts and imported necessary machinery. Exempted item at S.No.29 in the Table of Notification S.R.O. 480(1)/88, dated 26‑6‑1988 relates to raw material imported by Government approved industrial projects located in the approved industrial estate of Gadoon Amazai as provided in Notification S.R.0.517(I)/89 dated 3rd June, 1989 and is withdrawn by Notification dated 9th May, 1991 providing as under:‑‑ . "In the aforesaid Notification, in the Table, S.No.29 and entries relating thereto shall be omitted. "

3. The Notification dated 9‑5‑1991 mentioned above, withdrawing exemptions was challenged in Peshawar High Court by 54 Constitution petitions, which have been dismissed against which present petitions before us have been filed seeking leave to appeal.

4. The contentions raised before us on behalf of the petitioners are as under: (a) Writ petitions should not have beers dismissed by the High Court on the ground that industrialists in other parts of the country protested and for that reason there was justification for withdrawing notification of exemption. (b) There was no justification for dismissing writ petitions of the petitioners, whose components deletion programme spread over a period of 5 years given by the Government, which was duly acted upon. (c) Whether scope of section 31‑A of the Customs Act, 1969 is confined to the cases of contracts or agreements for the sale of goods or opening of letter of credit in respect thereof and would not cover cases under consideration in which doctrine of legitimate expectations can be invoked as is being done in India? (d) Whether vested rights accrued to the petitioners on the principles of locus paenitentiae and promissory estoppel?

5. On the other hand Mr. S.M. Zafar. Advocate Supreme Court for Central Board of Revenue submitted that exemption is withdrawn competently under the authority of law for very valid reasons and contentions raised on behalf of petitioners are untenable as they have been dealt with adequately and rejected on earlier occasions in the case‑law on the subject including 1992 SCMR 1952 (Army Welfare Sugar Mills v: Federation of Pakistan), 1993 SCMR 1905 (Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan) and PLD 1993 Supreme Court 176 . (Government of Pakistan v. Muhammad Ashraf).

6. During the hearing, it was pointed out at the Bar that public statement is made by the Prime Minister of Pakistan that exemptions granted to the industries set up in the Industrial Estate of Gadoon Amazai, which have been withdrawn, are to be restored. In that connection Deputy Attorney‑General was directed to find out whether any steps have been taken but he was unable to make any specific statement in that regard and stated that the Government wanted the cases to be decided by this Court on merits.

7. Leave is granted to consider the following contentions:‑‑ (1) Whether it is correct to say that by using words "charged and paid" in section 6 of the Sales Tax Act by Finance Act, 1990, the whole I Customs law will apply? (2) Can amendments be made in fiscal laws by Money Bill which does not go to the Senate and what is the scope of the Money Bill? (3) Do the present cases fall outside the scope of section 31‑A of the Customs Act, 1969 by invocation of doctrine of legitimate expectations.

8. The interim relief granted earlier shall continue. M.B.A./M‑2130/5 Leave granted.