1991 PLP 2580 (MLD)

SYED ABDUR REHMAN, J.

In these four Constitution Petitions, common questions arise for consideration and, therefore, we are disposing of the same by this common judgment.

2. As the facts are almost similar in these petitions, it is not necessary to state the facts in each one of them. It will suffice, if we refer to the relevant facts of C.P. No.D-628 of 1984.

3. The petitioner applied for and was issued an import licence dated 21-4-1983 for the import of caustic soda (sodium hydroxide aqueous solution). Petitioner arranged to import 3000 metric tons of Liquid Caustic Soda from United States of America. Payment was made by L.C., dated 24-4-1983. The said caustic soda was shipped vide Bill of Lading dated 30-4-1983 and on arrival at Karachi Bills of Entry were filed for the total consignment. The Customs duty on caustic soda is leviable under item No.28.17B @ 40%. In addition a regulatory duty is leviable in accordance with section 18(2) of the Customs Act. By Notification dated 31-10-1982 under section 18(2) of the Customs Act, the Federal Government imposed a regulatory duty on liquid caustic soda @ 45% ad valorem and by another Notification, dated 17-5-1983, it was increased to 10%. These increases were made after the petitioner had purchased and shipped the said caustic soda. Apart from that sales tax was originally leviable on caustic soda @ 10% by means of a Notification dated 17-5-1983. The rate of sales tax was enhanced to 30%. The grievance of the petitioner-is that the regulatory duty could not be imposed in excess of 50% of the Customs duty while in this case, it has been levied much above the permissible limit. The next grievance of the petitioner is that the petitioner having been granted import licence and having paid for the caustic soda imported by him by means of L.C. and having shipped the same before issuance of S.R.O. had acquired a vested right and, therefore, the Federal Government could not increase the sales tax as it did by Notification, dated 17-5-1983. Hence this petition.

4. We have heard Mr. Khalid Anwar, Advocate for the petitioners and Mr. Abdul Ghaffar Siddiqui, Advocate for the respondent. Mr. Abdul Ghaffar has conceded that the regulatory duty could not have been imposed at a rate above 50% of the customs duty and, therefore, the imposition of 100% regulatory duty by Notification dated 12-5-1983 was illegal and of no effect. In this connection, we may refer to section 18(2) of the Customs Act, wherein powers have been conferred on the Federal Government in this behalf. It reads as under:-- "18.

(2) The Federal Government may, by notification in the official Gazette, levy subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the articles specified in the First Schedule at a rate not exceeding fifty per cent. of the rate, if any, specified therein ....or at a rate not exceeding hundred per cent. of the value of such articles, as determined under section 25 and may, by a like notification, levy a regulatory duty on all or any of the articles exported from Pakistan-- (i) in the case of articles enumerated in the Second Schedule at a rate not exceeding thirty per cent. of the rate specified it the second Schedule of the amount which would represent the value of such articles as determined under section 25; and (ii) in the case of articles not enumerated in the Second Schedule, at the rate not exceeding thirty per cent. of the amount which represents the value of such articles as determined under section 25."

5. The similar question came up for consideration before the Supreme Court in a number of appeals. In Yousuf Rerolling Mills v. Collector of Customs PLD 1989 SC 232 it was held that that the levy of charges in excess of 50% under the Notifications in regard to those articles whose rate of duty (customs duty) was specified in the First Schedule was illegal and beyond the mandate of the delegated authority. We are in respectful agreement with the above judgment of the Supreme Court and, therefore, hold that imposition of regulatory duty in excess of 50% of the Customs duty i.e. 20% was illegal, ultra vires and of no effect.

6. Now we would come to the enhancement of sales tax from 10% to 30%. Admittedly, the petitioner had applied for and was issued an import licence on 21-4-1983 for import of caustic soda. He arranged to import the same from U.S.A. and paid for the same by means of L.C., dated 24-4-1983. The said caustic soda was shipped vide Bill of Lading, dated 30-4-1983 and on arrival at Karachi Bills of Entry were filed for the consignment. Hence vested rights were created in favour of the petitioner before issuance of the impugned Notification, dated 17-5-1983.

7. Mr. A.G. Siddiqui, Advocate, submitted that no doubt vested rights of the petitioner as mentioned above created a promissory estoppel, but the same does not extend to legislative and sovereign function and, therefore, Notification dated 17-5-1983, which was a piece of subordinate legislation, enhancing the rate of sales tax was immuned from its operation. In this connection, he has relied upon case of Pakistan v. Salahuddin, reported in PLD 1991 SC

546. We have gone through this ruling. We are afraid that it does not help Mr. A.G. Siddiqui. The relevant observations may be reproduced as under:

"The contention of the learned Deputy Attorney-General that the doctrine of promissory estoppel does not extend to legislative, executive or sovereign functions of the State is correct to the extent that it does not indeed extend to legislative and sovereign function, but executive actions are not excluded from the operation of the doctrine." Bare perusal of the above citation would make it clear that executive actions are not excluded from the operation of the doctrine of promissory estoppel. Same point was also considered by the Supreme Court in a later unreported judgment in Civil Appeals Nos.187-K to 191-K of 1990 and it was held as under:-- "As regards the re-imposition of the sales tax and denial of the benefit of the exemption, our decision in Al-Samroz Enterprises v. The Federation of Pakistan 1986 SCMR 1917 holds the field as by a Notification, the Federal Government could not by withdrawing exemptions, enhance the fiscal liability on concluded contracts evidenced by the opening of their revocable letters of credit in favour of the suppliers. Section 31-A of the Customs Act cannot be invoked for protecting the levy of sales tax because that relates to customs duty and not to sales tax."

8. We are also in respectful agreement with the above judgment of the Supreme Court.

9. We, therefore, allow the petitions and direct that if they have charged regulatory duty or sales tax in excess to that which is lawful in any of the four petitions, they should refund the same. AA./A-1087/K Petitions accepted.