2020 PLP 1985 (PTD)

AQEEL AHMED ABBASI, J.

In both these petitions the Petitioner has expressed a common grievance against assessment by the Customs Authorities in respect of Goods Declaration submitted by the Petitioner while importing inactive ingredients of pesticides i.e. stabilizers emulsifiers and solvents, seeking exemption from payment of sales tax in terms of Clause 133 of the 6th Schedule to the Sales Tax Act, 1990, whereby, claim of the Petitioner has been declined on the ground that exemption from payment of sales tax in terms of Clause 133 is only applicable in the case of manufacturer of pesticide. Learned Counsel for Petitioner submits that bare perusal of the provisions of Clause 133 of the 6th Schedule to the Sales Tax Act, 1990, reflects that the exemption is available to pesticides and their active ingredients registered by the Department of Plant Protection under the Agricultural Pesticides Ordinance, 1971, and also to stabilizers, emulsifier and solvents, which have been imported by the Petitioner and are subject matter of these petitions. Whereas, there is no dispute with regard to classification of such goods by the Customs Authorities. Learned Counsel for Petitioner submits that in respect of active ingredients of pesticides, there is a requirement that importer has to be registered with the Department of Plant Protection under the Agricultural Pesticides Ordinance, 1971. Whereas, in case of import of inactive ingredients, such as stabilizers, emulsifiers and solvents, there is no such requirement, therefore, the Customs Authorities were not justified to withhold such exemption to the Petitioner in terms of express language of exemption Clause 133 of the Sixth Schedule to the Sales Tax Act, 1990.

2. Conversely, learned Counsel for Respondents have raised a preliminary objection with regard to maintainability of instant petitions on the ground that alternate remedy of appeal against assessments has not been available. It has been further contended by the learned Counsel for Respondents that the matter also requires factual scrutiny, which is not permissible under constitutional jurisdiction in terms of Article 199, therefore, instant petitions are liable to be dismissed. However, with regard to interpretation of the provisions of Clause 133, learned Counsel for the Respondents could not controvert the submission of the learned Counsel for Petitioner related to availability of exemption from payment of sales tax in terms of Clause 133 of, the 6th Schedule to the Sales Tax Act, 1990 to the import of stabilizers, emulsifiers and solvents, whereas, there is no restriction that such exemption is available to the manufacturers only.

3. We have heard the learned Counsel for parties and perused the record with their assistance and have also examined the provisions of Clause 133 of the 6th Schedule to the Sales Tax Act, 1990, which reads as follows:-

133. Pesticides and their active ingredients registered by the Department of Plant Protection under the Agricultural Pesticides Ordinance, 1971 (II of 1971), stabilizers, emulsifiers and solvents, namely:- Other surface active agents 3402.1190 Non-ionic surface active agents. 3402.1300 From perusal of hereinabove provision, it is cleat that the exemption from payment of sales tax is available to pesticides and their active ingredients registered by the Department of Plant Protection under the Agricultural Pesticides Ordinance, 1971, as well as to stabilizers, emulsifiers and solvents, which according to learned Counsel for the parties are admittedly inactive ingredients, to be used for manufacturing pesticides therefore, does not require an importer of such inactive ingredients to be registered with the Department of Plant Protection under the Agricultural Pesticides Ordinance, 1971. It is further observed that no where in the aforesaid Clause, there is any restriction to the effect that exemption from payment of sales tax will be available to the manufacturers of pesticides only, therefore, the sketchy assessment made by Customs Authorities to this effect appears to be misconceived and contrary to the express language of the aforesaid exemption clause.

4. As regards objection relating to maintainability of instant petitions on the ground of availability of alternate remedy, we may observe that since there are no disputed facts, and the matter revolves around interpretation of the express provisions of Clause 133 of the 6th Schedule to the Sales Tax Act, 1990, whereas, treatment meted out by the Customs Authorities through one liner assessment does not contain any valid reason, therefore, we deem appropriate to exercise the discretionary jurisdiction under Article 199 of the Constitution in the instant case.

5. In view of herein above facts and circumstances of the case, instant petitions are allowed. Whereas, it is declared that imported inactive ingredients for pesticides i.e. stabilizers, emulsifiers and solvents are covered under Clause 133 of the 6th Schedule to the Sales Tax Act, 1990 relating to exemption from payment of sales tax. Consequently, the Pay Orders furnished by the Petitioner at the time of seeking provisional release pursuant to order of this Court, may be returned to the Petitioner within 07 days.

6. These Petitions stand allowed in the above terms along with listed application. MH/S-35/ Sindh Petitions allowed.