2003 PLP 1251 (PTD)

TASSADUQ HUSSAIN JILANI, J.

This appeal is directed against the concurrent judgments of the learned Collector Adjudication dated 11-10-1999 as also that of the learned Customs, Excise & Sale; Tax Tribunal, dated 10-3-2002 vide which the former refused the grant of exemption from payment of custom and other dues with regard to the goods subject-matter of appeal (in terms of S.R.O. No.504(I)194, dated 12-3-1994) and the latter affirmed the said judgment and appellant's appeal was dismissed.

2. Facts giving rise to the instant appeal are that goods subject -matter of this appeal i.e. Compressors were imported by the appellants to be used, in the manufacturing of Deep-freezers. The bills of entries were filed at various points of time and the last bill of entry filed was March, 1999. The issue raised in this appeal primarily relates to the interpretation of the import of S.R.O. No.504(I)/94, dated 12-3-1994 which inter alia provided that the Federal Government exempted levy of Custom Duty and Sales Tax on the import of raw material, sub components and components imported for the manufacturing of goods specified in Table-I and II. The Deep-freezers were scheduled items in terms of S.R.O. in question. Subsequently vide S.R.O. No.545 (I)/98, dated 12-6-1998 the afore-referred earlier S.R.O. was amended and the exemption stipulated was qualified and it was provided that this exemption would only be available to those components and raw material which were not locally manufactured. In terms of C.G.O. No.7 of 1998 as amended on 12th June, 1998 the compressors were included at serial No.59 in the list of those items which were being locally manufactured. In the back drop of afore-referred factual position the controversy boils down to the availability of exemption for the period with effect from 11-11-1998 to 31-3-1998.

3. The learned counsel for the appellants submits that no show -cause notice in terms of section 32(2) of the Customs Act was issued to the appellants without which the appellant could not be burdened with the duties and taxes in question, that the documentary evidence was laid before the Adjudicating Officer to show that the manufacturers of compressors had stopped the manufacturing of compressors and therefore, the appellants were entitled to the exemption in question.

4. Learned counsel for the Customs Department on the other hand, defended the impugned judgment by submitting that the appellants themselves are to be blamed as they preferred imported compressors to the locally manufactured compressors, that it was on account of the concerns like the appellants that local industry was adversely affected and they cannot take benefit of their own wrongs.

5. We have heard the learned counsel for the parties and have gone through the impugned judgment.

6. So far as the argument of learned counsel with regard to non- issuance of show-cause notice in terms of section 32(2) of the Customs Act is concerned, we take note of the fact that appellant had challenged the levy of Custom dues and had sought relief in terms of S.R.O. in question by invoking the Constitutional jurisdiction of this Court which issue was ultimately taken to the august Supreme Court and on remand the Adjudicating Officer passed the impugned order. The non-issue of show-cause notice in the afore-referred circumstances, was merely a technicality and it was precisely for this reason that appellant's learned counsel had not pressed this point before the learned Appellate Tribunal which is evident from Para-7 of the impugned judgment and the appellants were represented before the learned Tribunal by the same learned counsel who has argued this case before this Court. No wonder, this finding of the learned Tribunal has not been challenged by the appellant in the memo of appeal. This argument therefore, is devoid of force and is repelled accordingly.

7. Coming to the other issue i.e. the question whether appellants are entitled to the benefit of the S.R.O. in question for the period after 11-11-1999 to 31-3-1999, it is not denied that the letter, dated 17th November, 1998 addressed to Member Customs; Central Board of Revenue, Government of Pakistan, Islamabad from Pak Electron Limited was placed before the Adjudicating Officer in which the categorical stand taken by the said Company was that "We have therefore, closed down our compressor manufacturing plant effective 10th November, 1998. Since locally made compressors will not be available in the country any more we request you to take this item out of the C.G.O. No. 7 of 1998 of 24th March, 1998". The factual position with regard to issuance of the afore-mentioned letter as also the fact that Company had stopped manufacturing compressors from duty given therein, was not disputed either before the Tribunal below or before this Court. In the afore -referred circumstances, we partly allow this appeal and set aside the impugned Judgments in so far as they deprive the appellant of the benefit of S.R.O. No.504(I)/98 for the period w.e.f. 11-11-1998 to 31-3-1999. S.A.K./C-189/L Appeal, partly allowed.