1998 PLP 1862 (CLC)

WAJIHUDDIN AHMED, C.J.‑‑‑The petitioner being a public limited company, 25 per cent. equity thereof is held by the Federal Government, whereas remaining 75 per cent.vests in various banks including some which stand nationalized. The subject‑matter of the dispute here is 10,000 bales of jute bags which were imported by the petitioner from Bangladesh. The dispute arose as to the valuation of the jute bags, the Customs ultimately accepting the petitioners' valuation. Meanwhile, because the goods kept lying at Port Qasim, demurrage and storage charges of Rs.6,03,840 were levied by the Port Qasim Authority. The levy was based on SRO 97 (KE)/1995, dated 16‑4‑1995, issued under section 13(3) of the Port Qasim Authority Act, whereby scales of tolls, rates and charges were notified. The petitioner sought concessional rates on the basis of the Customs Detention Certificate for the period 17‑9‑1995 to 25‑9‑1995 and for free working days viz. from 24‑9‑1995 to 30‑9‑1995. The plea was rejected on the ground that the consignment fell within the ambit of the exceptions contemplated by section III in the referred notification and that being so the concession incorporated in Note (8) appended to such section III did not apply. The quoted exception and Note (8) aforesaid are as below: "(f) Raw jute Five working Next ten Rs.28. per tonne per day and jute days, after days products bulk landing

Note. ‑(8) In cases where a Customs Detention Certificate is issued for the whole or part of a consignment, storage charges will be levied at the rate of Rs.10 per tonne or part thereof plus Rs.20 per tonne or part thereof per day on the whole or part of a consignment, as the case may be, for the period of detention and three working days thereafter, unless in the opinion of the Authority there are other reasons which do not justify this concession. This concession will not apply to items specified under exceptions above." Before us, Mr. Shaiq Usmani, the learned counsel representing the respondent No.l Authority, maintains that even though the petitioner cannot be saddled with responsibility for what came to transpire, the Port Qasim Authority under the rules to which it is subject can extend no relief to the petitioner. On his part, the learned counsel for the petitioner has relied on Aftab Ahmed Saeed v. Federation of Pakistan 1993 CLC 2022, where the following observation occurs:‑‑‑ "In that case, as provided under section 182 of the Customs Act, the goods remained vested in the Federal Government until they were ordered to be restored to the petitioners. Consequently, we are of the view that it should be the Federal Government which should be liable for the storage charges to the K.P.T. during the period the goods remained under confiscation and the petitioner should not be burdened with this additional amount of tax. However, so far as the K.P.T. is concerned, under section 46 of the K.P.T. Act, the Board of Trustees of the said respondents shall have lien over the goods until the dues of the said respondents are satisfied. (6) In the result, these petitions are allowed but only to the extent as pointed out above. We would, however, clarify that in our view in case the petitioner get the goods released after payment of the charges to the K.P.T. they can realize the amount payable for the period the goods remained under confiscation by instituting legal proceedings against the Federal Government. However, in case such proceedings are instituted the same would be decided on their own merits." The learned counsel has also drawn our attention to Al‑Rukiya Traders v. Central Board of Revenue, 1995 CLC 1456, where a Division Bench of this Court recorded the following: "As far as the question of payment of demurrage is concerned, since under section 182 of the Customs Act, the confiscated goods become the property of the Federal Government, the petitioner will not be liable for payment of demurrage charges from the date of confiscation of the goods till the date the Customs Authorities decide and dispose of the case finally. Before we part with this case, we hope that in further the custom authorities will be considerate to the citizens and decide such cases at an early date to avoid unnecessary accumulation of demurrage or other charges. The Federal Government will be free to take such action as is available under law against those officers due to whose conduct the Federal Government has become liable for the payment of demurrage charges." The referred notification, dated 16‑4‑1995 having been issued in pursuance of section 13(3) of the Port Qasim Authority Act, 1973, cannot be placed on a plane higher than rules framed under statutory authority, in other words what technically is known as subordinate legislation. Such follow‑up legislation, it is now well‑settled, is to be in conformity with the parent statute, conducive to the objectives thereof, reasonable and free of oppression. Section 13 aforesaid is promptly followed by section 14, postulating the circumstances in which tolls and charges may be remitted by the Authority. Due powers therefore, at various levels, are conferred, the ultimate being that of the board, with the previous sanction of the Federal Government. In such circumstances when there was an express provision in Note (6)(b) envisaging, "an extension of free period where a consignment cannot be cleared due to fault of the Authority", it is inconceivable that Note (8) could lawfully be saddled with something in the nature of a proviso to take away the concession available pursuant to a Customs Detention Certificate solely because the goods fell under the exceptions to section III without dilating upon or saying anything more. Surely, fault of the Authority could not be placed, as a generalization, at a level higher than a fault of the Federal Government, which usually is reflected when a Customs Detention Certificate is issued. The intendment of the Legislature being made clearer by the subsistence of section 14 in the 1973 statute, we have no hesitation in saying that the said rider appended to Note (8) above is neither in consonance with the purport of the statute nor reasonable nor free of oppression. We, accordingly, find the same to be unlawful and of no legal effect. In the result, the petitioner would be entitled to total or partial refund to the extent contemplated by Note (8) sans the curtailment of its referred appendage, which the respondent Authority would effect within a period of 15 days. The rule making power, however, may yet be exercised to replace the offending provision by a more appropriate one in accordance with law. This petition is, accordingly, allowed in terms. H.B.T./P‑52/K Petition allowed.