2021 PLP 1055 (PTD)

AGHA FAISAL, J.

The crux of this determination is whether the Anti-Dumping Duties Act, 2015 ("Act") could be amended vide the Finance Act, 2019 ("FA, 2019"), within sanction of Article 73 of the Constitution.

2. Briefly stated, section 15 of FA, 2019 amended the Act, in so far as section 51 thereof was concerned. The petitioners assailed the amendment on the anvil of the Constitution and sought for the said amendment to be declared ultra vires; hence, of no legal effect.

3. Per petitioners' counsel, amendment to the Act could not be undertaken vide a money bill; inter alia, as Article 73 intended money bills to primarily deal with taxation and precluded application thereof to laws designed to impose penalties. It was argued that anti-dumping duty ("ADD") was not a common burden for raising revenue for a general purpose; hence, did not qualify as a tax. It was further submitted that ADD, as envisioned per the Act, had already been adjudged to be penal in nature, therefore, the Act in any event was not amenable for interference vide a money bill.

4. The respondents' counsel insisted that the amendment to the Act was rightly carried out vide FA, 2019 since ADD is in itself a tariff; which in turn qualifies as a tax and variation in the tax regime is merited vide a money bill.

5. We have heard the respective learned counsel and perused the record and the law. The issue for determination before us is whether the amendment to the Act vide FA, 2019 could be sustained on the anvil of Article 73 of the Constitution.

6. It is considered expedient to initiate this deliberation by adverting to the salient features of the Act; the preamble1 whereof demonstrates that it does not contemplate a general levy and on the contrary has been promulgated for a specific purpose. Section 32 thereof envisions that mere dumping is not sufficient for levy of ADD, as the presence of an injury to the domestic industry is also required to be conjoined. It is further noted that even if the requirements of section 3 are satisfied, section 463 contemplates suspension / termination of ADD upon acceptance of a satisfactory price undertaking. It is gleaned from the aforementioned that the Act does not contemplate a common burden for raising of revenue for a general purpose and instead has been enacted to mitigate an injury caused by dumping.

7. It is trite law that tax is a compulsory exaction of monies by public authorities for utilization for public purposes. The august Supreme Court has maintained in the WWF case4 that the distinguishing feature of tax is that it imposes a common burden for raising revenues for a general, as opposed to specific, purpose. Subjecting ADD to the anvil of the definition of tax, illumined by the august Court, we find ourselves unable to sustain the respondents' equation of ADD as a tax.

8. Mian Saqib Nisar, J (as he then was) elucidated further, in the aforementioned pronouncement, upon the ambit of Article 73 of the Constitution and observed that "not everything that pertains to finance would necessarily be related to tax. Therefore, merely inserting amendments, albeit relating to finance but which have no nexus to tax, in a Finance Act does not mean that such Act is a Money Bill as defined in Article 73(2) of the Constitution. The tendency to tag all matters pertaining to finance with tax matters (in the true sense of the word) in Finance Acts must be discouraged, for it allows the legislature to pass laws as Money Bills by bypassing the regular legislative procedure under Article 70 of the Constitution by resorting to Article 73 thereof which must only be done in exceptional circumstances as and when permitted by the Constitution. The special legislative procedure is an exception and should be construed strictly and its operation restricted."

9. The remit of the Act has been deliberated at length before an earlier Division Bench of this Court in the Bikiya case

5. It was held that ADD, as imposed by the Act, is not a tax as merely dignifying the levy by the appellation duty does not mean that ADD is a tax6; a tax does not merit being tailored to specific individuals7; and that ADD is not a regulatory charge either

8. Munib Akhtar, J adjudged ADD to be a penalty; imposed if there is dumping with manifest injury, within meaning of the Act9, and illumined that in essence the Act imposes a condition, on import of goods into the country, that goods may not be brought in at a price lower than the normal price, and if there is any violation of this condition, coupled with manifest injury to the domestic industry, then a penalty, i.e. ADD, would have to be paid10.

10. It has been established that ADD, within meaning of the Act, is not a tax or a regulatory charge; and on the contrary is a penalty. In such a scenario no rationale has been articulated before us to justify amendments to the Act to be effected vide a money bill, within the mandate of Article 73 of the Constitution, while abjuring the process of amendment via the regular legislative process.

11. Therefore, we are of the considered view that the amendment of the Act vide FA, 2019 could not be justified before us; hence, we had allowed these petitions vide our short order dated 11.03.2021, in terms delineated herein below: "

1. It is hereby declared that amendment made through section 15 of the Finance Act, 2019 in the Anti-Dumping Duties Act, 2015, passed through Money Bill (and not through an Act of Parliament) does not fall within the parameters prescribed under Article 73 of the Constitution of Pakistan, 1973, hence, is ultra vires to the Constitution, and is hereby struck down.

2. As a consequence, thereof, the impugned show cause notices / order(s) [if any], issued to or against the Petitioners respectively, are declared to be unlawful and are hereby quashed.

3. The securities/guarantees furnished pursuant to interim orders, passed respectively in these Petitions are hereby discharged. Nazir of this Court/ Customs Collectorates concerned shall release the same to the Petitioners upon proper identification.

4. The goods covered by the aforesaid petitions in respect of which ad-interim orders are yet to be passed shall be released without raising demands for Anti-Dumping Duty which had become payable pursuant to omission of exemption clause (e) of section 51 of the Anti-Dumping Duties Act, 2015."

12. These are the reasons for our aforementioned short order. KMZ/Y-2/Sindh Order accordingly.