ALPHA CHEMICALS (PVT.) LTD. VS FEDERATION OF PAKISTAN, 2013 PTD-LAHORE-HIGH-COURT-LAHORE 2064 (2013)

(a) Customs Act (IV of 1969)---

----Ss. 81(2), 81(1), 80 & 79---Constitution of Pakistan Art. 199---Constitutional petition---Maintainability---Petitioner assailed final assessment order passed under S. 81(2) of the Customs Act, 1969---Alternate remedy---Contention of the petitioner was that since no appeal/remedy under the Customs Act, 1969 was available against an order passed under S.81(2) of the Customs Act, 1969 and such an order was the final determination of assessment duty with respect to goods that had been provisionally released under S. 81(1) of the Customs Act, 1969, it was therefore distinct from a final assessment order passed under S.79 or S.80 of the Customs Act, 1969 against which an appeal/ remedy was available---Held, that only in absence of any statutory remedy, resort to Constitutional jurisdiction of the High Court was justifiable.

(b) Customs Act (IV of 1969)---

----S. 81(2)---S.R.O. 567(I)/2006 dated 5-6-2006---Constitution of Pakistan, Art.199---Constitutional petition---Import of platinum sponge/ power---Exemption from payment of customs duty vide S.R.O. 567(I)/2006 dated 5-6-2006----Exemption from customs duties for import of platinum was denied to the petitioner on the ground that since the petitioner was a pharmaceutical company, it was entitled to only those exemptions specified in Table-III of S.R.O. 567(I)/2006 dated 5-6-2006; and not to the exemption provided for import of platinum in Table-I of the said S.R.O.---Validity---Specific exemptions for the pharmaceutical industry had been provided in Table-III of S.R.O. 567(I)/2006 dated 5-6-2006; nevertheless, there was no restriction on the claim of exemption by an importer under Table-I of S.R.O. 567(I)/2006 dated 5-6-2006 as it so happened that platinumwas not an exempted item under Table-III of S.R.O. 567(I)/2006 dated 5-6-2006; whilst it was exempted under Table-I of said S.R.O.; therefore there was no special exemption for the pharmaceutical industry in respect of imported platinum, and there was a general exemption regarding the said item for all importers under Table-I of S.R.O. 567(I)/2006 dated 5-6-2006---Language of S.R.O. 567(I)/2006dated5-6-2006 did not place any restriction upon the persons entitled to exemption under Table-I of said S.R.O., therefore even though the petitioner belonged to the pharmaceutical industry, there was nothing to deprive it of the benefit if exemption under Table-I of S.R.O. 567(I)/2006 dated 5-6-2006---Impugned order was based on the misreadingoftheS.R.O. 567(I)/2006 dated 5-6-2006,anddeprivedthe petitioner right of an exemption available to all importers under Table-I of S.R.O. 567(I)/2006 dated 5-6-2006----Impugned order was set aside and constitutional petition was allowed, in circumstances.

Mian Abdul Ghaffar for Petitioner.

Irtaza Ali Naqvi for Respondents.

Date of hearing: 30th May, 2013.

JUDGMENT

UMAR ATA BANDIAL, C.J.---The petitioner imported platinum sponge/powder vide G.D. No. 27109 dated 12-12-2008, G.D. No. 52557 dated 16-5-2009 and G.D. No.411 dated 3-7-2009. On the said G.Ds, the petitioner claimed exemption from payment of the statutory rate of customs duty at 5% advalorem on the basis of S.R.O 567(I)/2006 ("SRO") dated 5-6-2006. There are three Tables in the said notification classifying imported items and their respective rates of exemption. Table-I of the notification mentions "platinum" at item No.26-E of S.R.O. and allows total exemption from customs duty on its import. The petitioner's goods were released provisionally under section 81(1)oftheCustomsAct,1969("Act")videorderdated16-12-2008. A clarification from FBR was sought which by letter dated 11-9-2009 left the matter of exemption to the decision by the Collectorate on the basis that the petitioner belongs to the pharmaceutical industry. Accordingly, the final assessment order dated 15-9-2009 passed under section 81(2) of the Act denies the said exemption to the petitioner.

2.Learned counsel for the petitioner submits that no appeal/remedy under the Act is available against an order passed under section 81(2) thereof. Such an order is the final determination of assessment of duty with respect to goods that have been provisionally released under section 81(1) of the Act. It is distinct from a final assessment order passed under section 79 or 80of the Act against which an appeal/ remedy is available.

3.Learned counsel for the respondent has not been able to show any statutory remedy in respect of an order under Section 81(2) of the Act. As such in the absence of a statutory remedy, the present resort to constitutional jurisdiction of this Court is justifiable.

4.On merits, it is observed that the final assessment order dated 15-9-2009 that is based upon the opinion of the FBR dated 11-9-2009 is insistent that since the petitioner is a pharmaceutical company, therefore, it is entitled only to those exemptions from customs duty on imported goods as are listed in Table-III of S.R.O. As such the petitioner is not entitled to the general exemption on imported platinum contained in Table-I of the S.R.O.

5.The S.R.O. has been perused carefully. Whereas specific exemptions to the pharmaceutical industry are provided in Table-III thereof, nevertheless, there is no restriction on the claim of exemption by an importer under Table-I of the S.R.O. It so happens that platinum is not an exempted item under Table-III of the S.R.O. whilst it is exempted item under Table-I thereof. Therefore, although there is no special exemption for the pharmaceutical industry in respect of imported platinum, there is a general exemption regarding the said item for all importers under Table-I of the said notification.

6.The language of the S.R.O. does not place any restriction upon the persons entitled to exemption under Table-I thereof. Therefore, even though the petitioner belongs to the pharmaceutical industry, there is nothing to deprive it of the benefit of exemption under Table-I of the S.R.O.Consequently, the impugned order dated 15-9-2009 is based on a misreading of the S.R.O. and un-necessarily deprives the petitioner of a right exemption available to all imports under Table-I of the same.

7.This petition is allowed in the foregoing terms.

KMZ/A-105/LPetition allowed.