1990 PLP 1187 (SCMR)

ALI HUSSAIN OAZILBASH, S.‑‑This order will dispose 9f Civil Appeals Nos.212‑K to 232‑K of 1980 and 49‑K to 51‑K of 1981 filed by Messrs Nizam Impex and 150‑K of 1984 tiled by Messrs General Foods Corporation as a common question of fact and law is involved therein.

2. The facts very briefly stated are that Messrs Nizam lmpex appellants had imported welding electrodes from foreign exporters as per import licences issued by the Chief Controller of Imports and Exports on 21‑4‑1976. Letters of Credit were opened in favour of the consignors on 26‑4‑1976 and the goods were shipped by the consignors on 30‑8‑1976.

3. The goods were exempt from customs duty except to the extent of 20 per centum ad valorem vide Central Government Notification bearing S.R.O. No.372(1)/72 dated 8‑6‑1972. This was, however, cancelled through the notification published in the Gazette of Pakistan Extraordinary, Part 11, on 16‑11‑1976 and a regulatory duty at the rate of 20 per centum ad valorem was also imposed on welding electrodes vide S.R.O.No.1107(1)/76 published in the same Gazette of Pakistan.

4. On arrival of the goods, the Karachi Customs authorities charged the appellants a statutory rate of 60 per centum ad valorem plus regulatory duty at 20 per centum ad valorem on the import value of the goods. This also caused an overcharge of sales tax which was levied at 20 per centum on the duty paid value of the imported goods. The appellants were thus overcharged an amount to the extent indicated in every case.

5. The appellant's claim for return of the excess was turned down by the Customs authorities and their Constitution petitions were also dismissed by the High Court.

6. M/s. General Foods Corporation imported 122 cartons of, salted butter and 14 cartons of unsalted butter for value of Rs.49,672 against a foreign import licence ‑‑‑‑‑‑ of the vessel its Master riled the Import ...Manifest on 1‑1‑1978. The Government of Pakistan under the revised financial budget announced on 1‑1‑1978 withdrew certain concessions in the customs duty on some items through S.R.Os. bearing Nos.20(1)/7R and 21(1)/78 dated 1‑1‑1978 and imposed regulatory duty etc. at 100% on such items which were free of such duties before. Pursuant to the changed position the Assistant Collector of Customs issued a show‑cause notice to the appellants on 21‑1‑1978 calling upon them to make good the short recovery of Rs.49,672 in the customs duty. The prayer of the appellants was turned down by the Customs authorities and the demand for payment of duty was maintained by the Departmental authorities and the Constitution petition filed by the appellants was also dismissed.

7. Leave in these cases was granted to resolve the conflict of opinion between the Sindh and Lahore High Courts on the question of the date relevant for determination of value and rate of import duty as a result of the provisions of section 30 of the Customs Act, 1969.

8. We have heard the learned counsel for the appellants. In support of his case he relied upon the authority of this Court reported as Al‑Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917) wherein it has been held: "Retrospective operation cannot be given to executive orders so as to destroy contractual rights and obligations already accrued:" He, however, pointed out that the effect of the law laid down above has been undone through the present amendment made in the Customs Act of 1969 through Ordinance 11 of 1988, namely,‑‑ xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) after section 31, the following new section shall be inserted and shall be deemed always to have been so inserted namely:‑‑ "_31‑A. Effective rate of duty.‑‑‑ Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of sections 30 and 31, the rate of duty applicable to and goods shall include any amount of duty imposed under section 18, section 2 of the Finance Ordinance, 1982 (XII of 1982), and section 5 of the Finance Act, 1985 (1 of 1985), and the antidumping or countervailing duty imposed under the Import of Goods (Anti‑dumping and Countervailing Duties) Ordinance, 1983 (111 of 1983), and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of contract or agreement for the sale of such goods or opening of letter of credit in respect thereof. (2) For the purpose of determining the value of any imported or exported goods, the rate of exchange of which any foreign exchange is to be converted into Pakistan currency shall be rate of exchange in force,‑‑ (a) in the case of goods referred to in clause (a)_ of section 30, on the date referred to in that clause; (b) in the case of goods referred to in clause (b) of the aforesaid section, on the date referred to in that clause; and (c) in the case of goods referred to in section 31, on the dates referred to in that section."

9. Thus, in view of the latest legal position the appeals have lost their merit and are hereby dismissed with no order as to costs. H.B.T./N‑252/S Appeals dismissed.