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Petitioner: LAHORE TEXTILE & GENERAL MILLS LTD. VS Respondent: FEDERATION OF PAKISTAN
1988 S C M R 1511
1988 S C M R 1511
Present: Muhammad Haleem, C. J., Shafiur Rahman and Usman Ali Shah, JJ
LAHORE TEXTILE & GENERAL MILLS Ltd.‑‑Petitioner
versus
FEDERATION OF PAKISTAN and others‑‑Respondents Civil Petitions Nos.144‑R to 154‑11,178‑11,188‑R, 180‑R to 187‑R, 420, 421,454,455, 456 to 458 and 463 of 1988, decided on 1st June, 1988. Customs Act (IV of 1969)
‑‑‑S.19‑‑Finance Ordinance (XII of 1982), S.2‑‑Finance Act (I of 1985), S.5‑‑Notifications dated 29th May, 1986 and 14th June, 1984‑ Leave to appeal granted to consider question as to whether levy of additional custom duty as surcharge under S.2, Finance Ordinance, 1982 and additional custom duty as Iqra surcharge under S.5, Finance Act 1985 could be levied in view of exemption granted under Notifications dated 29th May, 1986 and 14‑6‑1984 issued under S.19, Customs Act, 1969‑‑Goods were, however, ordered to be cleared on furnishing of Bank guarantee to the satisfaction of the Department. Sohail Jute Mills Ltd. v. Federation of Pakistan and others 1984 S C M R 32 ref. Raja M. Akram, Advocate Supreme Court and M. A. Siddiqui, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.144‑R to 154‑R, 178‑R and 188‑R of 1988) . M.Akram Khawaja, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record (absent) for Petitioners (in C.Ps. Nos. 180‑R to 187‑R and 436 to 439 of 1988). M . A . Qureshi, Advocate‑on‑Record for Petitioners (in C . Ps. Nos.420, 421, 454 to 458 and 463 of 1988). Malik M.Qayyum Additional Advocate‑General and Sajjad Ahmad Sipra, Deputy Attorney‑General, S.Niaz Ali Shah, Standing Counsel and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents (in all the Petitions). Date of hearing: 1st June, 1988. ORDER
MUHAMMAD HALEEM, C.J.‑‑In this and the other connected petitions, the question for consideration is as to whether the levy of additional customs duty as surcharge under section 2 of the Finance Ordinance, 1982 and additional customs duty as Iqra surcharge under section 5 of the Finance Act, 1985, could be levied in view of the exemption granted under notifications dated 29th of hay, 1986 and 14th of June, 1984 issued under section 19 of the Customs Act. The learned counsel for the petitioners claim that this exemption covers the levy of additional customs duty under the aforesaid legislative measures while on the other hand the learned Deputy Attorney‑General contends that this levy is under separate enactments and until they are exempted under the exemption provisions, the exemption granted under section 19 cannot extend to the levy under these measures. There is no amendment of the Customs Act but only with reference to the goods specified in the First Schedule to the Customs Act, 1969, that the levy is chargeable under subsection (2) of section 2 of the Finance Ordinance. There is a similar provision in the Finance Act of 1985. The High Court has held against the petitioners and as leave has already been granted to examine the identical question in Sohail Jute Mills Ltd. v. Federation of Pakistan and others 1984 S C M RI 32, we would grant leave to examine the question whether the petitioners can claim exemption on the basis of the two notifications of the additional levy by section 2 of the Finance Ordinance, 19821 and section 5 of the Finance Act, 1985. Security for costs Rs.2,500 in each case. As an interim measure till the decision of these appeals we would direct that the Bank guarantee furnished by the petitioners in the High Court shall be kept alive and not enchased by the respondents. We are informed in Petitions Nos.180 to 187 of 1988, 420 of 1988 and 439 of 1988 that the goods have not been cleared as yet and the learned counsel for the petitioners in these petitions state that they should also be allowed to clear the goods on the same terms. The learned Deputy Attorney General states that on the basis of the orders in the other cases, he has no objection if the goods are cleared or released on the petitioners furnishing Bank guarantee to the satisfaction of the concerned Deputy Collector (Customs), and we order accordingly. The appeals arising from these petitions shall be heard on the present record with liberty to the parties to file additional documents, and direct that the appeals should be listed for hearing on the re‑opening of the Court in October, 1988. M.B.A./L‑12/S Leave granted