M/s Indus Rags Karachi etc VS Government of Pakistan, etc

FORM NO.HCJD/C

JUDGMENT SHEET

IN THE SLAM ABAD HIG cou a

ISLA MABAD

tt.Nc. ICA No. fiHe

1.t}_o-w-ioi7 Mb llarr,flggi g!c' vs. Government o-f !o!i$or1 e-tc' -,--- --

2.177-w-2012 ftfii toineem lttt"tnotionol & Another vs' Government of Pohiston etc.

3.rBs-W-2o12 M/s 3-5tor Troding compony etc. vs. Government of Pqhistqn etc.

4.lB6-w-2o12 M/s plotinum Troding compony & Another vs. Government of Pohistqn etc.

5.r_87-w-2012 frlls f,rf.S-frqding Compony vs. Government of Pohiston etg, 6. 1q8-w 2p_1? M/s Umtr Troding Compony vs. governmen! 9f Pohiston etc' 7. r89-w-2012 M/s M.l .-.!gnltgry Store etc' vs' Govern ment of Pohiston etc. L 190-w-2012 M/s Worriqch Troders etc. vs. Government of Pqhiston etc.

9.19r-w-2012 M/1C_lqg_dhry-Nrt vs. Governmen!_.qf-poh-istql gt-c. -- ro. 192-w-2012 Mh Mh MZ Ceromics vs. Government of -Pohistqn-et-c.- - -. . - .

11.193-w-2012 M/s Arshod & Sons vs. Government of Pohistqn etc. trrtls AUautloh Tiles etc' vs. Government of Pohistqn etc'

12.194-w-2012 '13. r95-w-201? M/1lyllon lols etc' vs' Govemmgn! of Pohilton etc' 14. 196-w-201" frfls Zohoib Ali & Co. etc. vs. Government of Pqhiston etc' .r_1.

197-w-2012 Mh.Hgmg Ljfe vs' Government of Pohiston etc' 16. 198-w-20,l2 M/s Horne Life etc. vs. Government of Pqhistqn etc' 17. r99-w-2012 M/s Mohhoh etc. us. Government of Pqhiston etc. 1S. 2c,c-w-2012 Mh Muhqmmod Troding Compony & Another vs. Covernment of Pohiston etc.

i9. 20r-W-2c12 Mls Gol{en Enterprises vs. Government of Fohiston etc' zo zoz-w-2012 M7s Woheed Sons etc. vs. Governmerrt of Potrist'Jn ?tc'- -

21.203-w-2A12 M/s 5. Abdulloh & co. & Another vs. Government of Pqhistqn etc.

22.2o,4-w-2012 M/s Kholiq Troding Co. us' Government of PohisLgn etc' 23. 208-w-2012 Mh Dotview lmporter etc' Vs. Mini:try crf Commerce' Qo_vgryrryrg1t of Pohiston etc. . :

24.23o-w-20-12 friis 0mei eorporotion vs' Government of Pohisto4-etc' 25. 231-w-2012 M/e W.H. Traders etc. vs. Goyer4mgq! of Pqhiston etc' D$le cf heoring I u.oE.rglr &Bp*tlantrt by I Mr. lhclqaG llahmood Chohan, Adocate hft. llsnum tulten, Adeotote Bsrrliler Bebor Ali l{han Gh. Arrhud llohmcod, Advotete Retpondentr by t Rnno ltlghsmrmod lhamfume Aduotale Rois Huhsmmod lqbrrl, Aduccale

E9-Ol:lt!aH-l9-lE!-AUBEtH!-I Throush this consolidoted judgment, cbove titled lcAs ore being decideci, u'rhich ore directed ogoinst the judgment doted 27.O4.2O12, whereby leorned Single ludge-in-Chomber' dismissed the preferred chsllenging writ petitions by o ringle order. Therefore, instont lCAs hove been the soid order.

2.Focts briefly stoted in the writ petitions us well os in lcA ore thot oppellonts

used to import tiles, sonitory goods etc from Peoples Republic of chino covered under

Cotegory-V of Free Trode Agreement (FTA) (hereinofter termed os FTA) on

qnd Gouernment lnternqtionol Treoty executed between lslomic Republic of Pohiston of Peoples Republic of Chino colled os "Poh-Chino FTA' on 24.11.2c/06, which is opplicoble w.e.f. its dote of execution. Government of Pohiston issued sRO

qlso fromed No.12g6/2oo5 doted z6.12.zoosfor implementotion of the soid Treoty ond rules for the purpose. Six cotegories of the commodities to be imported from chino,

some incorporoted in Section ll of the soid Treoty. However, o custom duty of 25olo wdS

imposed qt the time of execution of the Treoty ogoinst PTC Heodings ond sub-

exclusion heodings. Cqtegory-V specifies no concession, whereos Cotegory-Vl speohs from the Treoty.

The Government of Pohiston increqsed custom Cuty initiolly from 25olo to 35o/o

w.e.f. O1.o7.2oO8 through SRO No.a97(1) doted tr.OO.ZOOg ogoinst the soid

PTC

heodings ond further increose up to 37.5o/o including port of regulotory duty through

SRO No.497(1)tog & 5RO No.s9s(1)/o9 ogqinst levy of duty ot 25o/o of PTC heodings

referred therein covered under cotegory-v of the Treoty, therefore, were chollenged

some os illegol, before this Court by filing writ petitions seehing thereby declorotion, the without lowful outhority qnd frqgront violotion of the lnternotionol Treoty "Poh-Chinq

FTA".

Leorned Single ludge-in-chomber while declining relief proyed for observed os

under: -

tJ. tn addition to the obove, if the petitioners feel thot uh lS(c) ibid they ore entitled to reduce rote of duty, they can roise this obiection before the Customs Authorities in oppeal. ln this respect, the petitioners hqve got olternate ond adeguote remedy ond on thot score too writ connot be issued.

14.!n view of the oforementioned focts, I find no force in these petitions ond occordingly qllthe writ petitions ore dismissed.

3.Leorned counsel for the oppellonts' orgued thot leorned Single ludge-in- chomber ignored the delegoted legislotion, issuonce of SRO doted 26.12.2c,o.5 bv

Act, 1969' They Government of pqhiston under provisions of Section 18(c) of Customs unless legisloted by olso orgued thot leorned Judge hos erred in deciding os to Treoty, the porliqment connot be implemented os low of lond. He orgued thot rights of the

of very oppellonts ore protectecl under Article 18 of the Constitution ond conditions the Trqde Agreement, its violotion to execute by the Government, constroined oppellonts' to seeh relief by invohing writ jurisdiction' euestion wos roised, 05 to whether Section 18(c) of the Customs Act exclusiuely

deols cotegories for decreose in rotes of preferentiol duty of the Free Trode

a !CA No.176-W-zotz etc. J

Agreement, it is olso emphosized thot leorned Single Judge, while ignoring the lesol

con only be ospects thot the violotion of the Treoty offecting the rights of oppellonts, chollenged through constitutionol jurisdiction of this Court. lt wos olso orgued thot

increose of the custom duty rote from 25olo to 37.5olo ogqinst the Treoty Poh-Chino

(FTA) vqlidly executed between two Governments ond thus issuonce of Notificotions ot

increosed rote, ore thus illegol, ultrq-vires ond without lqwful outhority. Leorned

while counsel orgued on lihe noture issues thot leorned Single Judge-in-Chomber, deciding the writ petitions, hos fqiled to consider the distinction between low of lond

ond Treoty executed between two Governments, hoving o specificotion, which being

custom duty' binding upon the Federol Government, connot empower to increose such It wos eorlier by Notificqtion, wos imposed @ 25olo. He, in support of his contentions, referred relevont provisions of Treoty os well os Notificqtions issued by the respondents

thereby reiteroted the cloim of oppellonts thot such increose by imposition being directly controry to the relevont clouses of Treoty, is on itlegot ond unlowful oct, which following offects the rights of oppellonts'. He, in support of his contentions, submitted cqse lowr -

i)PLD t9t8 luprerne Gourt eZO (ll/r th. Abdur Rohlm, AlIch Diltc Ut. Federqtion ol Pohlrtan elc) at, PLD t97l lupreme Gourt rC5 (H/t Ulmonis Glatl theet Foclory Ur. talel far Officer, Chiltagong) tlr, 2OO2 CLG l8t9 (}luznllcr Khon end Otherf U& Enscuee frstl Property throsgh Deputy Adminiltretor) tu) ZOIO PfD zOtZ (Gcmmilrioner oI lncome for, Karachi Ur. ll/r Grlndloyl Bonh PLG, Kcrcchl) u) ZOO9 PfD fl9t (H/l Americon Erprett Bonh Limitcdr Kcrochi Ut. Gommitlioner oI Inccme fcrr Coyt'lr Kerrrchi) ei) 2OOf PfD 1994 (Gommilrioner oI lncome fsr V|. Ghorl Brolhc Contlruclion).

He, therefore, submits o request thot while occepting these lCAs, writ petitions

qllowed' dismissed by the leorned Single ludge-in-Chomber, moy olso be Shomim

4.On the very dqy, when the motter wos ploced before the Court, Rono Ahmed, Advocote & Roio Muhommod lqbol, Advocqte recorded their presence,

qnd shown their willingness to submitted power of ottorney on behotf of respondents

proceed with the cose.

referred

5.Leorned counsel for the respondents Rono Shomim Ahmed, Advocote Section 18 (cx4) of customs Act,1969. He, by referring the soid Act, orgued thot Section

ICA No.176-W-zOtz etc 4

18(c) drives internotionol treoties. Simultoneously, it proves the prerogotive of the

Government for discontinuing or increosing the preferentiol rotes, not exceeding the

stondord rotes or decreosing the preferentiol rotes. He olso orgued thot Section 31A of

the Customs Act, 1969 in furtherqnce of it, olso gives power of the withdrowol of whole

or ony port of sonction or concession of duty. He orgued thot infqct the oppellonts

hove chollenged SRO issued by the Government under the Finonce Act, o5 such,

provided by the oppellonts in foct should hove chollenged the some before the setup low, where concerned forums ore provided powers even to exomine the issuonce of

SRO. Therefore, oppellonts hqve wrongly invohed writ iurisdiction. He orgued thot

lcAs, by itself, ore not mointoinoble on severql counts, becouse writ connot be issued on

which connot be o Treoty, which unless become low of lond by the oct of Porliqment, provides o complete chollenged through writ jurisdiction. He orgued thot customs Act hierorchy to deol with such type of motters ond oppeols, insteqd of enioying proper

jurisdiction, they hove wrongly opprooched this Court. He orgued thot right of oppeql is ovoiloble to the petitioners, but insteod of filing oppeol, they hove directly invohed

constitutionol iurisdiction.

ln this regord, he referred cose low reported in t99t ,Clln t9, which enunciotes the principle thot legislotion when provides o hierorchy for determinoLion of

o dispute, o complete procedure for such disputes, writ would be not mointoinoble'

with regord to the Treoty, Hon',ble Supreme court of Pohiston in o reported hos eloborotely discussed cose pLD l9;9,ttrc 693 (Ms. Shehto Zio &Others V. WAPDA) such issue ond decide the some with o view thot without froming low in terms of

implemented os internotionol ogreements, the covenonts of such ogreement cqnnot be o io* nor they bind down onY PortY'

ln this regord, he hos olso submitted o cqse low reported in 2eO2 tGHn of (Societe Generole De Surveilonce S.A. Vs. Pohiston through Secretory, Ministry question of low wos olso Finonce, Revenue Division, lslomobod), wherein similor eloborotely discussed ond formed on opinion thot provisions of Treoty were not

some hque no effect incorporoted through legislotion into the low of country, therefore, of oltering the existing low qs such, rights orising there-from, colled treqty rights, connot

wos not vested with the be enforced through Courts, os in such o situotion, the Court by omending the power to do so. He qlso orgued thqt in this regord, through legislotion

ICA No.176-W-zotz etc 5

Customs Act, Section 19(3) wos enocted. He orgued thot even certoin rights occrued in

of Customs fovour of petitioners, some stood wiped out by enoctment of Section t9(3) Act,1969.

ln this regord, he referred ZOoi PfD 495 (Nishot Mills Limited Vs. Federotion of pqhiston through Secretory, Finonce Division, Federol Secretoriot ond oz-Others)' ln

the time the soid iudgment, Hon'ble Division Bench of Sindh High Court hove discussed period of bound, did not gront ony exemption from poyment of duty for o specific quolifying to the benefit time, but merely stoted certoin preconditions to be fulfilled for of exemption, but when such period is not expired, the petitionert even if ocquired right of exemption through question of withdrowol will be oltogether irrelevqnt' under the Though, it is observed thqt executive wos bound to representotion mqde exercise of doctrine o promissory estoppel, but there could be no estoppel ogoinst legislotive power.

He olso orgued, while referring cose low PLD t99!l lc 'lc (sondolbor Enterprises Pvt. Ltd. vs. centrol Boord of Revenue cnd others), whereby the Diuision

Bench of Hon,ble Supreme court hos observed thot High court hos to see the poy the duty dominont object of filing of constitutionol petitions, if it wos not to ossessed by o customs officer of Korochi, Supreme Court declined petition for leove to

pleo of publicotion of oppeol. ln such coses, petitions were filed of other ploces on the q similor relevont notificqtion of such ploces. He qrgued thot in the instont cose, feoture exists ond oppellonts since were chqrged of Korochi Port ond they hove

grievonce they hove, they wrongly chosen the jurisdiction of this court. Therefore, if ony moy ogitote the some before Hon'ble High court of Korochi.

Mr. Rojo Muhommod lqbol, Advocote, while orguing, submitted certoin cose

Lqhore & others vs' low. He whlle relying upon looS tGlilR !7 (collector of customs, Universol Gotewoy Trqding corporotion & Another), orgued thot under such 179' 193' 194-A' 196 of the circumstonces, without efficocious remedy ovoiloble uls Customs Act, 1969, the importers insteod of opprooching concerned forum ovoiloble in

gqrb of Article 199 of the the hierorchy of customs Low, connot seeh relief under the Constitution.

in o reported cqse Similor wos the view drown by the Hon'ble Supreme Court t99r tciln ttco (lncome Tox officer & Another vs. M/s choppql Builders).

He orgued thot Customs Collector hos not been joined os o porty, therefore, view formed by the Hon'ble Supreme Court in o reported cose 2OOl DfD 22t7 (Collector of Soles Tqx Vs. Muhommod Tohir & Others), the ovoiling of constitutionol jurisdiction is totolly inelinqble.

He orgued thot in the instont cose, Collector Customs, levying the duty, hos not been impleoded os o porty, therefore, controversy connot be resolued properly ond effectively.

!n this regord, he olso referred o cqse low reported os PLD t992 lG eAt (commissioner of lncome Tox, Coys-ll & Another vs. Homdord Dqwohhon (woqo, Korochi, wherein Hon'ble Supreme Court observed thqt when qlternote remedy up to

High Court is quoilobte, ruch proctice wos thus disopproved by the Hon'ble Supreme Court.

He, while relying upon 2Ot2 PfD 54t (Collector of Customs & Another Vs.

Mople Leqf Cement Foctory Limited & Others), hos orgued thot Full Bench of Hon'ble Supreme Court hos decided such on issue when o show couse notice wos issued by the outhority demonding customs duty, when on the pleo thot respondents hove prepored to file repty of such notice by roising pleos ovoilqble to him under the low, the outhority would decide the some occordingly, os o result whereof, the decision of Hon,ble High Court wos set oside ond concerned porty wos directed to file reply, which wos ordered to be decided in occordonce with low.

5o for the concern of exemption within o certoin period or period not fixed, he relied upon reported cose lqw PICL t99S CL 45O (Mh M.V. Electronics lndustries Pvt.

Ltd. Through Mqnoger & Others Vs. Government of Pohistqn through Secretory Finonce, lslqmobod ond Others). The Hon'ble Supreme Court while discussing complionce of deletion progromme under s.R.O. 517(l)/89 within o period of five yeort, exemption ouoiling thereby imposed no obligotion of the outhority to heep exemption ollowed for full fiue yeors. Thus withdrowol of exemption before expiry of five yeors wos not declored illegql ond orbitrory.

He, while drowing our qttention in continuity whereof thot Hon'ble Supreme Court, while holding the Notificotion gronting exemptions do not contoin ony time limit during which these exemptions were to remoin operotiue nor there wos ony

representotion from the Government thot these exemptions will remoin operotive for

be invohed' ony specified period, the doctrine of promissory estoppel cqnnot He too relied upon Section 18(c) & 31-A of customs Act, 1969 in support of his

the iudgment possed by contentions ond both leorned counsel hove strongly supported leorned Single ludge-in-Chomber.

ond

7.We hove corefully heord the orguments, exomined the record ovoiloble the outhorities referred by either sides.

B. From the record, it oppeqrs thot leorned Single ludge-in-Chomber' while in between two interpreting low, hos properly formed his opinion obout the ogreement question by invohing writ countries, unless mode the low of lond, connot be colled in jurisdiction.

for g. We olso observed the strong opinion set forth by the leorned counse!

respondents with regord to the hierorchy, which provides o complete system of

complete legislqtion for entertoining such disputes' !t is well settled tqw os o bosic principle of jurisprudence thot in cose of ony prevoil.

conflict between treoty ond settlement,low of lond hos to legislotion by to. We ore olso impressed with the view thot Act prevoils over the (4) empowers the issuing notificotion ond thus, Section 18(c), porticulorly subsection preferentiol rote, but it should Federo! Government to either increose or decreose the not be exceeding the stondord rotes. For convenience, Section l8(cx4) of the Customs

Act,1969 is reProduced hereunder: - ,(4) Notwithstanding anything contoined in subsection (t) and (Z)' where the Federal Government is satbfied thol in the interest of trode including promotion of exports, it is necessory to tohe immediote oction for discontinuing the preferentiol roti'or increosing the preferential rote to a rate not exceeding in respect of qn afticle the stondord ratq or decreosing the preferentiol rate, specified in the First Schedute the Federol Government may, by notification in decrease as the cose the officiot Gozette, direct dhcontinuation of, or increase or moy be the Preferential rate"'

11.Lihe-wise, Section 3t-A provides the effective rote of duty, which is olso

reproduced hereunder: - ,,rr-A. ElftecCive rate ol daty.- (t) Notwithstonding onything or ony decision of any contoined in any other low for the time being in force the rate of duty opplicable Court, fo, tni iurposes of Section 30, 3O-A ond 31, section ls' lsA to any goods sholl include ,ny o-o,unt of duty imposed under payoble in ond nc ond the amount of duty thot may hove paft become of the exemption or conteguence of the withdrowal of the whole or any

ICA No.176-W-zolz etc. 8

concestion from duty whether before or ofter the conclusion of a controct or credit in respect ogreement for the sale of such goods or opening of a letter of thereof".

12.The orguments odvonced by the leorned counsel for the oppellonts thus corry no weight nor the outhorities referred by the leorned counsel for the oppellonts hoving

persuoded by the orguments ony nexus with the dispute in hond. Therefore, we ore not qdvonced by the leorned counsel for the oppellonts' con olso

13.However to o query roised by the court, os to whether the Notificotion be chollenged before the oppellote outhorities to which, leorned counsel for the

oppellonts did not controvert it.

14.Therefore, under the circumstonces, foctuol ond legol position enumeroted obove, we ore of the view thot judgment possed by the leqrned Single ludge-in-

Chomber is bosed upon sound reosoning os such, some does not require ony

interference. As o result whereof, instont lCAs ore hereby dismissed, with no order os to

costs.

ilDDIQUI) (iloon -UL- QUNE'HI)

IUDGE

Announced in Open Court on l&'Qg'-?o&'

Uploaded By : Engr. Umer Rasheed Dar