P L D 1982 Karachi 233 (PLP)

NAIMUDDIN, ACTG. C J.‑On 27th July, 1979, the President of Pakistan addressed the nation and he announced the withdrawal of fresh duty imposed inter alia on imported powder milk in the Federal Budget for the year 1979‑

80. This announcement of the President was given effect to by Notification No. 683 (1)/79, dated 28‑7‑1979, issued by the Federal Government, in the Ministry of Finance and Economic Co‑ordination, whereby in exercise of the powers conferred by section 19 of the Customs Act, 1969, the Federal Govern ment directed that the goods specified in Column No. 2 of the notification be exempted from whole of the custom duty chargeable thereon and the table included concentrated powder milk. Much before announcement of the President, on 14.7‑1979 the petitioner filed a Bill of Entry No. C. 5114 for clearance of 4,200 bags of milk powder which was cleared on payment of the 0a,,toms duty at the rate of 50 % as provided in the Finance. Ordinance, 1979,. On 20‑8‑1979, the petitioner wrote a letter to the Assistant Collector of Customs, claiming the refund of the duty of Rs. 2,04,522 paid on the 4,200 bags of powder milk. But the Assistant Collector of Customs rejected the claim by the order dated 10‑9‑1979 on the ground that the Bill of Entry was filed before the issuance of the Notification dated 28‑7‑1979 which was not effective retrospectively. Aggrieved by the rejection of the claim the petitioner filed an appeal which was decided ex parte by the Collector of Customs as nobody had appeared on behalf of the petitioner, by the order dated 16‑4‑1980 holding that the Notification had not the retrospective effect. Failing in appeal, the petitioner filed a revision application with the Central Board of Revenue which was dismissed by a short order dated 10‑6‑1981 which reads as follows :‑ "Mr. Naseem Farooqui appeared for hearing on 18‑4‑1981. at Karachi. His main contention is that 'the notification withdrawing the sales tax of 20 % with effect from 28‑7-1977 is discriminatory and against natural justice. According to the Advocate, this notification should have covered those cases of milk powder also on which taxes were paid after the announcement by the President of Pakistan also intended to give relief to all the concerned parties. (2) The arguments advanced by the learned Advocate in support. of his claim are not tenable in view of the fact that the S.R.O. 674 (1) 79, dated 28‑7‑1979 and S.R.O. 680 (1)/79, dated 28‑7‑1979 were not given retrospective effect. The application has no force and is rejected accordingly." Dissatisfied with this order the petitioner has come up in this constitution petition under Article 9 of the Provisional Constitutional Order, 1981. We have heard Mr. Naseem A. Faruqui, Advocate for the petitioner. The learned counsel ,has urged the following grounds in support of this petition. (1) That the appeal was decided without hearing the petitioner contrary to the provision of section 120 of the Sea Customs Act. (2) That the President's declaration had the necessary effect of withdrawal of the duty with effect from the date it was imposed by the Finance Ordinance, 1979 and therefore, the duty paid by the petitioner ought to have been refunded. (3) That the notification suffers from invalidity and lawful authority as it offends the provisions of Article 4 of the Constitution of 1973 which has been preserved by virtue of the provisions of Article 2 of the Provisional Constitution Order, 1981, as amended. Now, taking up the first ground, it may be stated that it is the case of the petitioner that the hearing of the case was fixed on 29‑1‑1980 at Karachi but the notice of hearing dated 21‑1‑1980 was received on 2‑2‑1980 after the date of hearing. This may be true but since the order passed in appeal is based simply on interpretation of the notification and since the petitioners have been heard in revision no useful purpose would be served in remanding the case for rehearing for no prejudice is shown to have been caused and when, in our opinion the notification on which the whole case depended has been correctly interpreted. If we remand the case for rehearing, it will, in our opinion, be an exercise in futility. Taking up the second ground it may be stated that under the provisions of section 19 of the Customs Act, 1969 the Government is empowered subject to such conditions, limitations or restrictions, if any, as it thinks fit to impose, to exempt any goods imported into or exported from Pakistan or into or from any specific port or station or area therein, from the whole or any part of the Custom duties chargeable thereon. The notification issued by the Government exempting the milk powder from custom duty with effect from 28‑7‑1980, is perfectly in accord with the provision of section 19 of the Customs Act. The Government had the power to exempt milk powder an while doing so it could also impose such conditions, limitations, restriction as it would have thought fit to impose. Further under the said provisions the Government could exempt the goods wholly or in part, also. Here the Govern ment choose to exempt it from the date of the notification and not from any other date. On perusal of the declaration of the President of .Pakistan or the notification impugned in this petition, it cannot be said that it was intended to have any retrospective effect for no such intention is manifest even in the slightest degree from the language employed in the notification. The President made the announcement on 27‑7‑1979, and from next day it was given effect to by the Government. It was open to the Government to exempt the goods from payment of duty, if it so choose. The reasons as to why the Government has made the exemption from the duty effective from the date of the notification and not from the date of the enforce ment of the Finance Ordinance, 1979, cannot be gone into. The notification issued by the Federal Government is in accord with the provisions of sec tion 19 of the Customs Act and the order passed by the Customs authorities are in accord with the notification issued thereunder. In the case of Collector of Central Excise & Land Customs and 3 others v. Azizuddin Industries Limited Chittagong P L D 1970 S C 439, it was held by the learned Judges of the Supreme Court that the Court had no authority to make its own surmises as to the propriety of reason which has motivated the issuance of the notification in the case before the Court and it was not open to Courts to go behind the noti fication to find the raison d'etre for the same was out of place. As regards the ground that the notification offended the provisions of Article 4 of the 1973 Constitution, it would suffice to say that under Article 4 every individual is required to be dealt with in accordance with law and we have no doubt that the petitioner has been dealt with in accordance with law. However, it was submitted by the learned counsel for the petitioner that the persons who imported the articles on or after 28‑7‑1979 would be benefited while those who imported the articles just before 28‑7‑1979 would unduly suffer. But if by this argument the learned counsel for the petitioner intended to advance the argument that the notification offended principles B of equality and equal protection before law provided in Article 25 of the Constitution then firstly the Article stands suspended, secondly we would surely say that it did not, for from the date of notification all importers have been treated equally and there is no discrimination between them. If the argument of the learned counsel is accepted it would lead to absurdity for then no change can ever be made in the rate of Customs duties because whenever a change is made it might be more advantageous or disadvantageous as the case may be to some in comparison to those who had imported the goods earlier and had paid duties at higher or lower rates. We therefore, find no substance in this petition and accordingly, dismiss it in limine. M. Y. M. Petition dismissed.