1991 PLP 1522 (CLC)

SALEEM AKHTAR, J.‑‑Both these petitions shall be disposed of by this judgment as the facts and questions of law involved are common. In Petition No.C‑P.D‑1178 of 1989 the petitioner manufactures and sells inter alia chip and particle board and have its factory at Faisalabad. For the purposes of manufacturing chip board the petitioner imports impregnated paper. On 3‑6‑1989 .y the Federal Budget duty structure on paper was changed with the result that import duty of Rs.6,000 per metric ton leviable before the budget, was altered to 5th ad valorem. On the same date the Federal Government by Notification S.R.O 547 (1)/89 issued under subsection (2) of section 18 of the Customs Act, imposed regulatory duty of 30% ad valorem on "surface coloured, surface decorated or printed paper and paper board" covered by the heading No.48.11 of the Pakistan Customs‑ Tariff. On 17‑6‑1989 the Federal Government issued a Notification under section 19 of the Customs Act 1969 whereby inter alia "paper ,land paper board created, impregnated .or covered with plastic excluding adhesives" were exempted from customs duty as were chargeable in excess of 2917 ad valorem. On 11‑11‑1989 the petitioner claims to have imported impregnated paper and another similar consignment also arrived on 23‑11‑1989. The petitioner filed bills of entry for the aforesaid consignments and declared the import duty payable thereon at 20% ad valorem. The Technical Appraiser, however, added 30% regulatory duty on 14‑12‑1.989. The petitioner objected to this treatment made by the Appraiser on the plea that the goods being impregnated paper were not subject to regulatory duty and the exemption granted under section 19 includes the regulatory duty as it is duty of Customs. In Petition No. 80 of 1990 the petitioner claims to have imported impregnated paper which were subjected to regulatory duty by the Technical Appraiser. The petitioner has challenged the levy on the same plea as stated above. The claim of the petitioner in both the petitions is entirely based on the plea that they had imported impregnated paper but the customs authorities seem to dispute it. The statutory duty on paper and paper board coated, impregnated or covered with wax paraffin wax, stearin, oil or glycerrol was chargeable at Rs.6,000 per M.ton and these goods were classified under heading No.4811.4000. On 3‑6‑1989 the import duty of Rs.6,000 per metric ton was charged to 50% ad valorum. On 3rd June, 1989, S R O 547 (1)/89 was issued under Section 18 (2) of the Customs Act whereby Notification S R O 561 (1)/88 dated 30‑6‑1988 was amended by adding the following:‑-- "48.11 Surface coloured surface decorated or 30% ad vat. printed paper and paper board. Thus the goods mentioned in this Notification were subjected to regulatory duty as mentioned therein. By Notification dated 17‑6‑1989 the Federal Government amended Notification No. S R O 505 (1)/88 dated 26‑6‑1988 issued under section 19 with the effect that custom duty on paper, paper board coated, impregnated or covered with wax, stearin, oil or glycerol was exempted which was in excess of 20% ad valorum. Therefore duty on these goods was chargeable at 20% o ad valorem. By another Notification dated 29‑6‑1989 S R 0 679 (1)./89 issued under Section 18 (2) of the Customs Act regulatory duty was imposed in the following manner: "48.11 Surface-coloured, surface decorated or printed paper 30% ad vat and paper board." According to the petitioner this Notification does not include impregnated paper therefore the regulatory duty is not chargeable on such goods. It has further been contended alternatively that by virtue of Notification dated 26-6-1988 as amended by Notification dated 17-6-1989 exemption specified therein has been granted in respect of the customs duties. Regulatory duty was imposed on surface coloured, surface decorated or printed paper and paper board by notification dated 3-6-1989 at the 'rate of 30% ad valorum. Again by notification. dated 29-6-1989 same duty on the same goods at the same rate was imposed with effect from 1-7-1989 as notification dated 3-0-1989 was to expire on 30-6-1989. The question whether the petitioner imported impregnated paper has not yet been decided. The note of the Appraiser and Examining Officer is very clear on this point. The customs authorities has examined and sent the sample for detailed examination. According to custom authorities the petitioner's goods are surface coloured or surface decorated paper and not impregnated paper and till such time it is finally decided by the departmental authorities we will proceed on the same assumption as we cannot decide the nature of goods which is a disputed question of fact, in these proceedings. If the goods arc impregnated paper they do not fall within the description of heading No.48.11 as specified in the Notification No.679 (1)/89 dated 26-6-1989. It covers surface coloured, surface decorated or printed paper and paper board which according to the Appraising Officer is different from impregnated paper. Therefore, regulator duty cannot be levied. If it is assumed that the goods are impregnated paper then according to the petitioner it is exempted under notification dated 26-6-1988 as amended by notification dated 17-fi-1989. By these notifications as much of the custom duties chargeable on impregnated paper as are in excess of 30% ad valorum shall be exempted. Mr. Mohammad Sayeed contend that regulatory duty is a custom duty. In view of rule laid down in Nawab Brothers v. Collector of Customs Karachi and others P L D 1977 Kar 947 the contention is correct. The petitioner will therefore be entitled to claim exemption to the extent allowed under the notification. We, therefore, direct that the respondent shall first determine the nature of goods and then levy regulatory duty in the light of the observations made m I this judgment. A.A./C-198/K Order accordingly.