1990 PLP 456 (CLC)

SALEEM AKHTAR, J.‑‑This judgment will dispose of all the petitions mentioned herein below:‑ Constitution. Petition No. D-657 of 1985. 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There are two sets of petitions. In one set namely Petition No.594 of 1987, Petition No.700 of 1985, Petition No.315 of 1986 and Petition No.1171 of 1987 the facts are a bit different. However, in all the petitions lqra Surcharge as imposed by Finance Act, 1985 and surcharge imposed by Ordinance, 1982 have been challenged. First we give the facts of first set of petitions which are as follows:‑‑ The petitioners are engaged in manufacturing and sale of cotton yarn. It is alleged that after the enactment of Pay As You Earn Scheme Act 1973 and the scheme framed there under the Government of Pakistan issued a brochure explaining the scheme. In paragraph 4(c) it was provided that machinery which can be manufactured locally upto required specification will not be allowed to be imported. It is claimed that under the "Pay As You Earn Scheme" (PAYES), the petitioners applied to the Investment Promotion Bureau for permission to import spindles for the purpose of expansion /extension of their existing industrial undertaking. The permission was accordingly granted. On 14‑6‑1984 SRO. 500(1)/84 was issued by the Customs Wing of the Ministry of Industries, Government of Pakistan under section 19 of the Customs Act providing that plant and machinery which is not manufactured locally shall if imported for initial installation, balancing, modernisation approved by the Government for the specified areas shall be exempted from Customs Duties as mentioned therein. On the same day by a separate SRO issued by the Ministry of Finance, Regulatory Duty at 20% ad valorem was levied on specified plant and machinery which were otherwise exempted from the payment of customs duty. The petitioners on the basis of import licence placed orders for import and purchase of the machinery. On arrival of goods the petitioners presented bill of entry for release of goods claiming exemption at the rate of 50% of the normal duty as provided by SRO.500(1)/84. The Appraising Officer, however, levied Duty at 50% of the normal Customs Duty, 5% Additional Customs duty, Additional Duty at 20% ad valorem and Iqra Surcharge @ 5%. The petitioners objected to the levy but the request was not acceded to. The petitioners have, therefore, challenged the imposition of additional duties and lqra Surcharge in this petition. According to the respondents the petitioners have imported machinery which is locally manufactured, therefore, the case is covered by the proviso to the SRO and the duty has been calculated in accordance with the formula laid therein. All other levies are also according to law. In the second set of petitions, the petitioners imported machinery under BMR Scheme. On arrival of the goods the petitioners presented bill of entry claiming that lqra Surcharge and Surcharge were not leviable on the goods imported by them, but the respondents insisted on imposing lqra Surcharge at 5% and Surcharge at 6% on the value of the goods. By virtue of section 5(2) of Finance (Revised) Ordinance, 1988 dated 26‑10‑1988 section 31(A) was inserted byway of amendment in the Customs Act 1969 with retrospective effect. On the same day namely 26‑6‑1988 respondent No.2 in exercise of power conferred under section 19 of the Customs Act issued Notification SR0.456(1)/88 directing that the plant and machinery falling under the PCT Heading mentioned in column 4 of the table shall be exempted from customs duties chargable provided conditions laid down therein were satisfied. The petitioners relying on this notification claimed exemption. Mr. Muhammad Ali Sayeed the learned counsel for the petitioners has challenged the levy of additional duty at 20% ad valorem as it is due to misinterpretation of proviso contained in SRO 500(1)/84. It is, therefore, necessary to produce the relevant part of the said SRO as follows:‑‑ "SR0.500(1)/84.‑‑Irr exercise of the power conferred by section 19 of the Customs Act, 1909 (1V of 1969) and subsections (1) and (2) of section 7 of the Sales Tax Act, 1951 (111 of 1951), and in super session of the Ministry's Notification No.S.R.0.700(1)/80, dated the 20th June, 1980, the Federal Government is pleased to direct that the plant and machinery which is not manufactured locally shall, if imported for initial installation or for balancing, modernization, replacement or extension of the projects approved by the Government for the areas specified in column (2) of the table below, be exempt from so much of the customs duties leviable thereon under the First Schedule to the said Act as are in excess of the extent specified in the corresponding entries of column (3) of the table and the whole of sales tax subject to the following conditions, namely:‑‑ (1) . .................................................. (2). .................................................. (3) . .................................................. (4): .................................................. (5). .................................................. Provided that import‑substitutes of the plant and machinery as are manufactured locally shall be exempt from so much of the customs duties leviable thereon as are in excess of the aggregate of sum specified in column 3 of the table to this Notification and 20% ad valorem. TABLE S.No, Areas Extent of duties 1 2. 3. 2. 3. (a) 1. ........................... ..........................................

2. Karachi Division One‑half of the leviable ........................... customs‑duties. 3. 4. 5, ................ 6. 7. 8. 9. 10 11 12 ...........................

13. Such areas adjoining Karachi Division and Lahore District as may be specified by the Central Board of Revenue. (b) All approved One‑half(1/2) of the industrial estates leviable customs‑duties. in the areas referred above excluding Karachi Division. This SRO was issued under section 19 of the Customs Act and subsection 7(1) of the Sales Tax Act intending to grant relief from duty and tax inter alia on the condition that plant and machinery have been imported for initial installation or for balancing or modernising the project in the specified areas. The exemption has been granted to such imported machinery, which have been specified in the table. Under this notification the importers of machinery who satisfy the conditions laid down are entitled to exemption from such of the customs duties leviable thereon under the Customs Act as are in excess of the duty specified in column 3 of the table and the whole of sales tax. In column 3 extent of duty has been mentioned as "one‑half (1/2) of The leviable customs duties". Therefore, if the case is not covered by the proviso, the importer will be entitled to exemption of half of the duty leviable under the First‑Schedule to the Customs Act. But if the case is covered by the proviso then the rate of duty has to be calculated in the manner provided by the proviso. In order to bring the case out of the ambit of proviso it must be established that the machinery and plant imported are not locally manufactured. There is no dispute that machinery has been imported under the Pay As You Earn Scheme (PAYES). This scheme was notified by SRO 222(1)73 published in the Gazette of' 0th February, 1973. A copy of this scheme has been produced by the learned Deputy Attorney‑General who has contended that it does not contain any clause which provides that machinery which can be manufactured locally upto required specifications will not be allowed to be imported. On the other hand Mr. Muhammad Ali Sayeed has referred to photo copy of the brochure filed with the petition and marked as Annexure `A' in which para. 4 (C) lays down that machinery which is locally manufactured will not be allowed to be imported under the scheme. Relying upon this para. the learned counsel has contended that as the machinery was imported under this scheme it could not have been manufactured locally otherwise import would not have been permitted. Therefore, the proviso will not apply. A perusal of brochure does not reveal under which authority it has been issued and circulated. This brochure irrespective of the fact who had issued it, intends to explain the scheme. It cannot override the provisons of the scheme, nor add any condition which has not been specified in it. Therefore, we cannot draw presumption that the machinery which was imported by the petitioners cannot be manufactured locally. The petitioners have not produced any other authentic document to establish their contention. On mere presumption the petitioners cannot succeed. In any event such disputed questions of fact cannot be investigated in these prorecdings. Now question arises that as the proviso is applicable what duty will be payable. According to the learned counsel for the petitioners if the proviso is applicable then they are liable to two exemptions viz. (1) so much of the customs duties leviable thereon as are in excess of the aggregate of sum specified in column 3 of the table and (2) 20% ad valorem. According to the learned Dy. Attorney‑General the exemption will be from the so much of the customs duties leviable which is in excess of the total of the duty specified in column 3 and 20% ad valorem. The petitioners wish to claim exemption from half of the duty and also from 20% ad valorem. The learned counsel for the petitioners further contended that as the proviso is not happily worded and has created ambiguity the benefit must go to the subject. A perusal of the notification will show that it is intended to grant exemption in respect of import of plant and machinery which is not manufactured locally and is to be used for purposes of initial installation, balancing, modernisation, replacement or extension. Accordingly on import of such plant and machinery only half of the customs duties leviable under the First Schedule to the Customs Act were to be charged. But if the machinery imported is manufactured locally, the exemption will be as contained in the proviso. If the interpretation placed by the petitioners' counsel is accepted then the imported machinery which is locally manufactured will be exempted from half of the duty leviable under the Customs Act and further exemption of 20%v ad valorem shall also be granted. The petitioners thus claim double benefit on such machinery. The fact that the imported machinery which is not locally manufactured is granted exemption to the extent of half of the duty clearly indicates that the intention is to protect the local industries by not granting full exemption to such imported machinery which are locally manufactured. In that event how is it possible to grant larger exemption to imported machinery which are locally manufactured. The intention is to confer less benefit on such import. Considering from this point of view we agree that imported substitute machinery which are locally manufactured will be exempt from customs duties to the extent of the, excess amount calculated by substracting from the duty leviable under the Customs Act, the total of (1) the sum specified in column 3 of the table to the notification and (2) 20% ad valorem. The excess amount so calculated will form the amount from which the petitioners will be exempted. We will now consider the validity of lqra Surcharge which has been challenged in all the petitions. Mr. Rashid Akhund the learned counsel for the petitioners has mainly argued challenging the imposition and levy of Iqra Surcharge which arguments have been adopted by the learned counsel for the petitioners. Mr. Akhund has contended that as levy and imposition of lqra Surcharge is nothing but Primary Education Tax the Parliament is not competent to levy it as provided by Article 142 (C) of the Constitution. Iqra Surcharge on import of goods was levied by section 5 of the Finance Act, 1985 which reads as follows:‑‑ "

5. Iqra surcharge on imported goods.‑‑(1) There shall be levied and collected an additional customs duty as lqra surcharge on the importation of the goods specified in the First Schedule to the Customs Act, 1969 (IV of 1969), at the rate of five per cent. of the value of the said goods as determined under section 25 of the said Act: Provided that, for the purposes of the Sales Tax Act, 1951 (111 of 1951), the additional customs duty shall not constitute a part of the duty paid value. (2) The Federal Government, subject to such conditions, limitations, or restrictions, if any, as it thinks fit to impose, may, by notification in the official Gazette, exempt any goods, imported into Pakistan from the whole or any part of the additional customs duty leviable under subsection (1) and no exemption from payment of customs duty under the Customs Act, 1909, or any other law for the time being in force shall apply to the additional customs duty leviable under the said subsection." 1t clearly provides that Additional Customs Duty shall be levied as Iqra Surcharge on the importation of goods specified in the First Schedule of the Customs Act at 5%0 of the value of the said goods. Subsection (2) of the section 5 provides for exemption from payment of Iqra Surcharge which can be granted by the Federal Government. According to Mr. Akhund the Customs Duty recovered as lqra Surcharge is in fact Education Tax. 1n order to substantiate this contention the learned counsel has extensively referred to the budget speech of the Minister of State for Finance at the time of introducing the Finance Bill. Particular reference has been made to paragraph fife of the said speech photo copy of which has been produced by him which reads as follows:‑‑ "

66. We can hardly feel proud of our national development with our litracy rate as low as 2f> per cent, as formally defined and perhaps much lower on the basis of any meaningful concept of literacy. Only 2 per cent of our population attain education upto Matriculation and only 0.2 per cent upto a professional level. 1t is a national disgrace that only 6 per cent of the national budget is allocated to education. The ratio of expenditure on education is mere 1.7 per cent of GNP. Government has taken an important decision to correct the situation. A sizeable National Education Fund is being set up under the Prime Minister for financing education. A surcharge of 5 per cent is being imposed on the bulk of the imports. This would be called `Iqra Surcharge' and would be additional to the already existing development surcharge. Estimated income of 4.68 billion from lqra surcharge would be utilized to give additional grants for education. Education is a national obligation. We need large and assured availability of funds for this sector. The financing is, therefore, being spread over the entire nation with small individual contributions piling up to provide the large sum needed to ensure that the light of education is available for our future generation.

67. We have decided to provide Rs. 3.4 billion next year to the provincial governments by way of development grants for education. A special programme of Rs.0.8 billion has also been formulated to enable new mosque schools and regular primary schools to be started. Allocation has also been increased for universities, colleges and other components of education programme. As a result of these measures, education will claim next year 9 per cent of the national budget and 2.2 per cent of national income. The allocations are still inadequate phase, paucity of'resources would not be allowed to hinder the progress of educational programmes. 1t is a challenge to all those concerned with education. Let them concentrate on efficient physical progress and arrange to realise the target of 100 per cent literacy at the earliest. My effort would be that lack of finance is not allowed to hinder the realization of this goal." The learned counsel has contended that Tax was intended to be levied for the purposes of primary education and as education is not included either in the Federal or Concurrent List, the Parliament cannot legislate on this subject. In order to appreciate this contention, it would be proper to reproduce Article 142 which reads as follows:‑‑ "

142. Subject to the Constitution‑‑ (a) Majlis‑c‑Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; (b) Majlis‑e‑Shoora (Parliament) and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List; (c) A Provincial Assembly shall, and Majlis‑e‑Shoora (Parliament) shall, not have power to make laws with respect to any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List; and (d) Majlis‑c‑Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists for such areas in the federation as are not included in any Province." Federal Legislative List is mentioned in Part 1 of the Fourth Schedule to the Constitution. Reference has been made to the following item:‑‑ "

43. Duties of Customs including export duties." Reference has also been made to the following items of the Concurrent List 38. curriculum, Syllabus, planning, policy, center of excellence and standard of education. 39.Islamic education. 54.Fee in respect of any of the matters in this List, but not including fee taken in any Court. 47 Matters incidental or anciliary to any matters enumerated in this List." Relying on these entries the learned counsel for the petitioners argued that law on primary education cannot be enacted by the Parliament. According to him primary education is not covered by any of the lists and therefore, it is exclusively within the domain of the Provincial Legislature. It is in support of this contention that the learned counsel has heavily relied upon the speech made by the Finance Minister in the National Assembly while introducing the Finance Bill. The learned counsel has referred to Benazir Bhutto's case reported in PLD 1988 SC 416 at page 564 where the speeches in the Parliament were considered relevant for the purpose of interpreting the provisions of law. It was held that:‑‑ "However, Courts in Pakistan, India and the United States have taken a broader view and have often referred to the proceedings of the legislature when the words of the statute were ambiguous as an aid to construction of a statute for discovering the real intention of the law makers." Instructive discussion is found at pages 564, 565 and 566 of the report in which,various judgments of foreign jurisdiction have been quoted. The learned counsel for the petitioner has also referred to AIR 1981 SC 1922 where it was held that speech of the mover of the bill in the Assembly can be referred. Dr. S.A. Wadood the learned Deputy Attorney‑General has contended that the intention of the legislature can be ascertained from the clear and unambiguous language used in the statute and, therefore, it is not necessary to seek external aids while interpreting the provisions of law. In this regard the learned counsel has referred to the following judgments:‑ Magor R.D.C. v. New Port Corpn. (1950) 2 A.E.R. 1126. Magor And St. Mellons Rural Dist. Council v. New Port Corp (1951) 2 A.E.R.

839. London Transport Executive v. Betts (1958) 2 A.E.R. 636 (655). The Commissioner of Agricultural Income‑Tax East Bengal v. B.M.W. Abdur Rahman 1973 SCMR 445, 1935 Colambia Law Review 519 (521) and 21 Harvard Law Review 383 (406). . the observations made in these authorities go a long way to establish the rules of interpretation that the Courts have to go by the clear and unambiguous words of the statute without in any manner being influenced by the intention of the legislature which may have been completely different. However, in this regard observation of the Supreme Court in Benazir Bhutto's case quoted above rests the controversy for us. It has now become a recognised rule that where there is any; ambiguity in the language of the statute its true and proper meaning can ascertained by seeking external aids which may in rare and particular cases include even the debates of the Parliament. So far the judgment in Benaz Bhutto's case is concerned, it was a case adjudged on the touchstones of restoration of democracy and individual and public freedom in exercise of Fundamental Rights involving certain Constitutional and sub‑Constitutional legislations framed under abnormal circumstances and therefore the historical background had to be considered. 1n these cases only fiscal statutes are involved in which taxes and duties have been imposed and exemptions have been granted. Dr. Wadood while referring to the Colambia Law Review stressed that the Court should go with the legislature for the purposes of upholding the imposition of duty and taxes. It is true that where any tax or duty has been imposed, the Court will consider it to be valid unless otherwise shown unlawful and without jurisdiction. Section 5 of the Finance Act 1985 clearly stipulates that Additional ' Customs Duty shall be levied and collected on the importation of the goods specified in the First Schedule to the Customs Act. However, it further states that the additional Customs Duty shall be levied nd collected as "Iqra Surcharge". The use of the words as "lqra Surcharge" according to the learned counsel for the petitioners has changed the nature and character of taxation and viewed in the background of the budget speech it is nothing but an education tax for primary education. The charging part of the section describes the tax as Additional Customs Duty. Such duty has to be charged on importation of goods which has been specified in the First Schedule to the Customs Act. This clearly indicates that the duty imposed has relationship with the Customs Act and has been described as Additional Customs Duty. Its nomenclature, mode of levy, recovery procedure for such realization and the functionaries responsible for recovery have intimate connection with the Customs Act. In letter and spirit it is intended to be a Customs Duty. Mere use of words as lqra Surcharge does not change the l nature of levy, imposition and recovery. The learned counsel for the petitioners contended that in the facts and circumstances of the case and in view of the ambiguity created by the language of section 4 of the Finance Ordinance, 1985 the rule of `pith and substance' should be employed while interpreting it. This rule was considered in F.B. Ali v. State PLD 1975 SC 506 (624) where reference was made to the observation made in Subrehaman‑yan Chettiar v. Muttaswasmi Gaundan 1940 F.C.R. 188, United Provinces. v. Atiqua Begum 1940 F.C.R. 110 and Prafullah Kumar v. Bank of Commerce Khulna PLD 1947 P.C.1. In the second case Suleman, J. observed as follows When the question is whether any impugned Act is within any one of the three Lists, or in none at all, it is the duty of the Court to consider the Act as a whole and decide whether in pith and substance, the Act is with respect to a particular category or not. This can be inferred only from the design and purport of the Act as disclosed by its language and the effect which it would have in its actual operation." In the third case it was observed that: "Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficient legislation would be stilled at Birth, and many of the subjects entrusted to Provincial legislation could never effectively be dealt with." After referring to these judgments Hamoodur Rehman, CJ. observed:‑‑ "Be that as it may, the pith and substance rule still holds good and we have to consider as to what in reality is the true nature and character of the impugned legislation if any controversy arises as to the competency of the Federal Legislature to legislate with regard to subject not directly covered by any specific item in the list." The rule of pith and substance is pressed in service where a legislation is impugned on ground of want of competency of the legislature to enact in respect R of subject which is not directly covered by any item in the list. As discussed above Additional Customs Duty charged as Iqra Surcharge is a customs Duly covered by item 43 of the Federal Legislative List. There being no overlapping, conflict or absence of item in the list in respect of this tax, the rule of pith and substance cannot be of useful employment in this case. However, if the intention of the legislature has to be ascertained then the clear language of section 5 leads to the I conclusion that it is Customs Duty named as Additional Customs Duty which can be levied within the ambit of section 18 of the Customs Act. Mr. Rashid Akhund has further contended that the word `as' between the words "Additional Customs Duty" and "lqra Surcharge" means that the duty is in the nature of lqra Surcharge. The description of the levy is Additional Customs Duty and not lqra Surcharge. The learned Deputy Attorney‑General has contended that the word `Iqra" does not mean primary education. It means to read. Such a word can apply to primary, secondary, high secondary or even higher education of excellence. He further contended that items in the Federal and Concurrent List should be given wide meaning. The learned (D.A.‑G.) relied on AIR 1961 S.C. 1044 and 1985 (3) Supreme Court Cases 314 (338, 339). He further contended that it is not the name, but the real nature of the tax which shall ascertain the character and purpose of the duty. 1n this regard the learned counsel has referred to A I R 1945 P.C.

98. The description, imposition, levy, calculation and recovery are to be made with reference to and under the Customs Act. The Additional Customs Duty has intimate connection with the Customs Act. Merely by using the word Iqra Surcharge the real nature and character of the exaction cannot be changed. While considering similar arguments in Lahore Textile and General Mills Ltd. v. Islamic Republic of Pakistan P L D 1988 Lah. 461 where levy of Additional Customs Duty (lqra Surcharge) was challenged it was observed as follows:‑‑ "Reading the relevant section of the Finance Ordinance, 1982 and the Finance Act, 1985 it is obvious that the Federal Government proposes to levy Additional Customs Duty at 5% of the value of the imported goods specified in the First Schedule to the Customs Act, 1969 in addition to the Customs Duty already payable thereon under section 18 of the said Act. The object of‑ the special enactment is not to sponsor, develop or encourage education or centres of educational excellence, but to collect customs duties pure and simple, under the power of taxation available to it under item 43 of Part I of the Federal Legislative List under the Fourth Schedule to the Constitution. Since the text of these two special enactments that impose the two additional customs duties by way of surcharges are so clear the same are conclusive and I can infer any object or any intention other than taxation in the said provisions. It is well settled law that the validity of an Act is not affected if it incidentally trenches upon matters outside the authorised field, if otherwise by the rule of `pith and substance', it substantially falls within the power expressly conferred upon the legislature which enacted it. If the basic object of Chapter 2 of the Finance Ordinance, 1982 and section 5 of the Finance Act, 1985 was to levy nothing more than additional customs duty, the fact that incidentally the whole of the customs duty under the latter Act was to be or still is diverted to education, the legislation be held to be invalid merely because fund:; from the common pool have been specifically earmarked by the legislature for a particular purpose. It cannot be denied that all customs duties fall into the common pool and from there can be diverted into various channels to meet expenditure regarding a host of subjects and activities. The fact that the legislature has diverted the income of one particular item of additional customs duty for a specific purpose does not alter the `pith and substance' of the legislation, which is taxation. Once legislation, which specifically deals with taxation, is within the express powers, then it is not invalidated if incidentally the total income derived from such taxation is directed to meet the expenditure on a particular subject. The legislature has power to divert the income falling in the common pool into various activities and if the income on one source, which normally falls in the common pool, is channelized specifically to a particular purpose, the true object of the legislation, which initially was taxation, is not lost." Mr. Wadood the learned counsel has further contended that in paragraph 66 of the budget speech it has been stated that surcharge of 5% imposed on import shall be ear‑marked for education. The Government is entitled to collect tax and dirvert it for any item of expenditure. In the Lahore Textile & General Mills Ltd.'s case referring to similar contention it was observed as follows:‑ " ....the Annual Budget Statement of 1987‑88, the receipts under Customs are shown under two heads, one against item 0210 ad `Customs (A)' and the other under item 0212 as `Land Customs others: Iqra Surcharge'. It is thus clear that the additional customs duties are shown under the head `Customs', which comes under the common pool:' The Finance Minister's. Speech,, in the presence of the clear language of section 2 of the Finance Ordinance, 1982, and section 5 of the Finance Act, 1985, would not have the effect of altering their scope and object, which was no more than to realize additional customs duty by way of surcharge". Earmarking a particular amount of tax for the development of education or. Any other purpose will not mean that the tax has been levied only for the purposes of that particular object. Therefore, by mere use of words5 ',as Iqra Surcharge" the J Additional Customs Duty which from 7its nomenclature and method of imposition, levy and recovery is a Customs Duty cannot change its nature. Now we revert to the challenge made to the surcharge levied on imported goods under. Finance Ordinance, 1982 reproduced earlier. This Ordinance was amended by amending Ordinance of 1983. After the amendment section 2 reads as follows:‑ 2 Surcharge on imported goods.‑‑(1) There, shall be levied and collected an additional customs duty as surcharge on the importation of the goods specified in the First Schedule to the Customs Act, 1969 (IV of 1969), at the rate of five per cent of the value of the said goods as determined under section 25 of the said Act: Provided that for the purposes of the Sales Tax Act, 1951 (III of 1951), the additional customs duty shall not constitute a part of the duty paid value. (2) The Federal Government, subject to such conditions, or restrictions, if any as it thinks fit to impose, may, by notification in the official Gazette, exempt any goods imported into Pakistan, from the whole or any part of the additional customs duty leviable under subsection (1) and no . exemption from payment of customs duty under the Customs Act, 1969, or any other law for the time being in force shall apply to the additional customs duty leviable under the said subsection:' Mr. Ali Mahmood Akhtar and Mr. Rashid Akhund have contended that Finace Ordinance 1982 not being an existing law, "Surcharge" imposed by it cannot be recovered. According to the learned counsel after the imposition of Martial Law the Laws (Continuance in Force) Order 1977 (CMLA Order 1 of 1977) was promulgated. By Article 7 the limitation as to its duration prescribed in the Constitution was not made applicable. However, on enforcement of Provisional Constitution Order, 1981 (CMLA Order 1 of 1981) certain provisions of the Constitution including Article 89 of the Constitution were made applicable to the Laws (Continuance in Force) Order was impliedly repealed. Therefore, Article 89 was applicable with full force and as the Finance Ordinance, 1982 was not laid before the National Assembly it stood repealed after expiry of four months from the date of its promulgation. It was further contended that in any event after the restoration of the Constitution this Ordinance was not placed before the National Assembly, and therefore, it stood repealed. These contentions suffer from inherent infirmities. By proclamation of Martial Law the Constitution was kept in abeyance. The Laws (Continuance in Force) Order provided that subject to this Order and any other Order made by the President and any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator the country was to be governed as nearly as may be subject to the Constitution. Article 7 of this Order provided that an Ordinance promulgated by the President or the Governor of a Province shall not be subject . to the duration as provided by the Constitution. This provision was applicable to those Ordinances also which were in force before the commencement of this Order. Therefore, limitations as to duration prescribed by Article 89 did not apply to the Ordinances. When Provisional Constitution Order 1981 .was g promulgated by Article 2 it made certain provisions of the Constitution ! enumerated therein as part of this Order (PCO). Originally Article 89 was not included in it but by Provisional Constitution (First Amendment) Order 1981. Art. 2 was substituted by a new Article in the same terms except that some more Articles of the Constitution were added to it. By this amendment Article 89 was added in the list of Articles made part of P.C.O. Article 2 of P.C.O. provided that the Articles of the Constitution enumerated in it were to have effect subject to Provisional Constitution Order, Laws (Continuance in Force) Order and any Order made by the President or Chief Martial Laws Administrator. Therefore, Article 89 was made applicable subject to Article 7 of Laws (Continuance in Force) Order. Thus, the limitation as to the duration of Ordinance prescribed by Article 89 was not applicable. The contention that as Laws (Continuance in Force) Order was impliedly repealed by promulgation of P.C.O. the bar of Article 7 was not applicable is not tenable. Both these Orders existed side by side. The learned Dy. Attorney‑General has pointed out that both these Orders were repealed by Proclamation of Withdrawal of Martial Law on 30‑1''‑1985. In this view of the i matter the question of implied repeal does not arise. It is true that after the restoration of the Constitution the Finance Ordinance, 1982 was not placed before the National Assembly but it was not required to be done. Article 270‑A has validated all Ordinances made between 5‑7‑1977 and 30‑12‑1985 which were affirmed, adopted and declared to have been validly made by competent authority and all Ordinances which were in force on 30‑12‑1985 were to continue in force until altered, repealed or amended by the competent authority. The Finance Ordinace, 1982 is thus a law validly made and will remain in force till it is repealed. The learned counsel for the petitioners have stated that they have not challenged the legality of Eighth Amendment of the Constitution which they would raise in other appropriate proceedings. We therefore do not wish to express any opinion on this law. Mr. Khurshid Anwar Shaikh, the learned counsel for the petitioners has contended that Customs Duty can be imposed only under the Customs Act and not by any other enactment therefore Additional Customs Duty levied by Finance Act 1985 cannot be treated as Customs Duty. Section 18 of the Customs Act M provides that Customs Duties shall be levied at such rates as specified in the First Schedule and the Second Schedule or under any other law for the time being in force. Therefore, Customs Duties can be levied by any other enactment independent of the Customs Act. Reference can be made to Lahore Textile & General Mill Ltd's case P L D 1988 Lah.

461. Mr. Rashid Akhund contended that by section 31‑A of the Customs Act Surcharge and Iqra Surcharge have been declared to be in the nature of Customs Duties therefore in view of Notification No. S.R.O. No. 456 (1)/88 dated 28‑7‑1988 which grants exemption from Customs Duties will be applicable to Surcharge and lqra Surcharge and the goods cannot be subjected to these charges. As held in Yaseen v. Federation of Pakistan PLD 1989. Kar. 361 section 31‑A provides a method of computation. S.R.O. No.456 (1) 88 was issued under section 19 of the Customs Act granting general exemption from Customs Duty. Surcharge and lqra Surcharge on imported goods were levided by Finance Ordinance, 1982 and Finance Ordinance, 1985 respectively. Section 2 subsection (2) of Finance Ordinance, 1982 and section 5 subsection (2) of Finance Act, 1985 clearly provide that the Federal Government was empowered to grant exemption from Surcharge and Iqra Surcharge by Notification in the N official Gazette. Therefore, specific provision has been made for grant of ' exemption in respect of Surcharge and Iqra Surcharge. Where specific provision is made to deal with a particular situation then it supersedes the general provisions to the same effect. The Finance Ordinance, 1982 and Finance Act, 1985 had levied and imposed Surcharge and lqra Surcharge specifically providing for grant of exemption under the said Ordinance, therefore, exemption granted under section 19 of the Customs Act will not be applicable to them. Exemption from levy of Surcharge and Iqra Surcharge can be claimed if notification to this effect is issued under Finance Ordinance, 1982 and Finance Ordinance, 1986. All the petitions are, therefore, dismissed with no order as to costs. The petitioners had obtained release of the goods under the orders of the Court on furnishing bank guarantee. These guarantees shall not be encashed by the respondents for a period of sixty days from today. AA./S‑504/K Petitions dismissed.