1990 PLP 313 (MLD)

SALEEM AKHTAR, J‑‑The petitioner obtained an import licence dated 24‑2‑1986 for importing edible vegetable oils/NOC. On the basis of import licence obtained by the petitioner it arranged for import of 200 metric tons of Soyabean Oil and opened irrevocable letter of credit dated 1‑3‑1986. The goods were shipped on 25‑4‑1986 and the bill of entry was filed for clearance of the goods on 15‑5‑1986. At the time when petitioner had opened letter of credit and entered into agreement for purchase of goods no customs duty was payable; however on 7‑4‑1980, a notification was issued imposing customs duty @ 3,000 per metric ton on Soyabean Oil. By another notification dated 17‑4‑1986 under section 18(2) of the Customs Act the said customs duty of Rs.3,000 was reduced to Rs.2,350 per ton. The petitioner therefore filed this petition on 6‑8‑1986 challenging the imposition of customs duty as the notification issued by the respondents Nos.l and 2 has violated the vested right created in favour of the petitioner. There is no dispute about the facts stated above; however the respondents have taken the stand that section 31‑A of the Customs Act which was added by Finance Act VI of 1988 with retrospective effect validates the levy made by the respondents. Mr. Sattar Memon the learned counsel for the petitioner has contended that section 31‑A has taken away vested rights of the petitioner and therefore it is not a valid piece of legislation. The learned counsel had filed an application under Order VI Rule 17 C.P.C. seeking amendment of the petition by adding a ground challenging the validity of section 31‑A of the Customs Act. In view of Pakistan Molasses Company v. Collector of Customs P L D 1989 SC 340 it was not necessary to amend the petition and the petitioner was allowed to advance such argument if the respondents justify their action under section 31‑A of the Customs Act. We have heard Mr. Sattar Memon and Mr. Umar Qureshi, the learned counsel for the parties. Similar contention as raised by the learned counsel for the petitioner came up for consideration in the following two judgments: (i) M/s. Yaseen Sons v. Federation of Pakistan and another P L D 1989 Kar. 361 where it was observed: "A perusal of the above section indicates that notwithstanding anything contained in any 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 any goods shall include any amount of duty imposed under section 18, section 2 of the Finance Ordinance, 1982 and Section 5 of the Finance Act, 1985 and the antidumping or countervailing duty imposed under the Import of Goods (Anti‑Dumping and Countervailing Duties) Ordinance. 1983 and amount of duty that may have become payable in consequences of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. In other words the effect of subsection (1) of section 31‑A of the Act is that an importer and an exporter of goods is made liable to pay customs duty for the import or export at the rate of customs duty obtaining on the date referred to in sections 30 and 31 of the Act i.e. in case of import on the date on which a bill of entry is presented under section 79 for home consumption and in case of goods cleared from a warehouse under section 104 on the date on which a bill of entry for clearance of such goods is presented and in respect of the export at the rate and amount of duty applicable at the time of delivery of bill of export under section

131. It is, therefore, evident that it has intended to nullify the effect of the above Supreme Court case namely, Al‑Samrez." As regards Mr. Rasheed Akhund's contention that section 31‑A of the Act violates Articles 18, 23 and 24 of the Constitution, we are unable to subscribe to the above submission. The above Articles have no application. Article 18 guarantees the freedom of trade, business and profession. In our view, section 31‑A does not violate the above. guaranteed freedom. Whereas Article 23 guarantees that every citizen shall have a right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest has also not been violated as section 31‑A provides the methods of computation of customs duty. It does not prohibit either acquiring or holding of any property, nor Article 2.1 which provides that no person shall be compulsorily deprived of his property save in accordance with law, has any application to the instant case." In S. Akhlaq Ahmad v. Federation of Pakistan and others 1989 C L C 1475 following observation was made: "The clear effect of section 5(2) of the Finance Ordinance, 1988, is that by a fiction of law, section 31‑A is deemed to have been incorporated after section 31, in the Customs Act, 1909, from the date of enforcement of Customs Act, 1909. We, therefore, find no force in the contention of learned counsel for the petitioners that section 31‑A has not come into effect retrospectively. One of the important consequences provided by the newly‑added section 31‑A is, that amount of Customs duty which may have become payable on imported goods in consequence of withdrawal of the whole or part of exemption or concession from duty whether prior or after conclusion of the contracts or agreements for sale of such goods or opening of letter of credit in respect thereof, became recoverable on such imported goods as provided in section 30 of the Act, notwithstanding anything contained in any other law for the time being in force or any decision of any Court. This clearly meant that the vested right of a party to pay Customs duty at concessionary rate under an exemption notification which was in force at the time he entered into contract for import of such goods was taken away by the Legislature. It cannot be doubted that Legislature in Pakistan is fully sovereign and is competent to legislate both prospectively and retrospectively. However, where a provision of law is enacted with retrospective effect and has the effect of taking away the vested rights, such effect can only be produced by express words or necessary intentment. The fact that section 31‑A has the effect of taking away a vested right and it has come into effect retrospectively is sufficiently borne out by section 5(2) of the Finance Ordinance of 1988 and the language of section 31‑A. The learned counsel for the petitioner has contended that section 31‑A violates Article 18 of the Constitution which provides that subject to such qualification if any, as may be prescribed by law every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. It is not necessary to reproduce the proviso to this Article. However the learned counsel has not elaborated how section 31‑A prohibits or restricts the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. The learned counsel also referred to Al‑Samraz Enterprises v. the Federation of Pakistan 1986 S C M R 1917 and contended that vested right created in favour of the petitioner cannot be taken away by an enactment. The observation relied upon has been made in respect of the notification which was challenged as is obvious from the following passage: "The subsequent notification impugned in this case was issued in exercise of statutory power and has the force of a statutory instrument. Accordingly the rules of a statutory construction are attracted to the interpretation and determination of its legal effect. It is well‑settled that an enactment which prejudicially affects vested rights or the legality of past transactions, or impairs contracts cannot be given retrospective operation." Again it was observed that: "We are, therefore, clearly of the opinion that if a binding contract was concluded between the appellants and the foreign exporter or steps were taken by the appellants creating a vested right to the then existing notification granting exemption, the same could not be taken away and destroyed in modification of the earlier one, on the ground that under section 21 of the General Clauses Act, the Government could exercise the power of modification. The question before us is not whether the second notification was ultra vires the powers of the Government but whether the second notification would be applicable to the case of the appellants resulting in taking away the exemption already granted. The aforesaid judgment of the Supreme Court was dealing with the notification which was issued by the Government in exercise of its executive authority. In the present case the Parliament has passed an Act adding section 31‑A of the Customs Act making it with retrospective effect. Nothing has been brought to show that such Act could not be passed by the Parliament or it was not within its competence to enact such law nor that the said section is in any manner in violation of the Fundamental Rights. We, therefore, respectfully‑following the judgments quoted above dismiss the petition with no order as to costs. A.A./S‑508; K Petition dismissed