This judgment shall dispose of ICA Nos, 505/2000, 506/2000, 554/2000, 555/2000 and 556/2000 as common questions of law are involved.
2. Facts in brief are that the goods subject matter of the above-mentioned Intra Court Appeals (iron strips) were imported by the Appellants in the year 1966. The Chief Controller Imports and Exports directed the appellants to pay in addition to the usual custom duties and charges an amount as price differential calculated on the basis of average landed cost based on the actual imports during the period from April, 1865 to March, 1966 and the actual landed cost of the imports.
This demand was made in the exercise of the power conferred on the competent authority under Section 3 of the Imports & Exports Control (Act XXXIX) of 1959, and the Notification issued pursuant thereto Bearing No, 36(66)/Import-R dated 25.4.1966 as also Notification No, 62(66)/Import-R dated 19.8.1966. The afore-referred notifications and the orders passed thereunder were validated through Section 7 of the Import of Goods (Price Equalization Surcharge) Act, 1967. Appellants challenged the afore-referred provision of law, notifications issued and the differential amount demanded through Constitutional petitions which were dismissed by the learned Judge in Chamber of this Court vide the impugned judgment dated 24.5.2000 (passed in WP Nos, 1772, 888, 654 of 1967, 796 of 1961 and 1961 of 1966).
2. Learned Judge in Chamber dismissed the above Constitutional petitions primarily on account of the law laid down in Messrs DADA Limited Karachi vs. Secretary to the Government of Pakistan, Ministry of Commerce and another (PLD 1974 Karachi 254).
3. Learned counsel for appellants (in ICA Nos, 505 and 506 of 2000), in support of these Intra Court Appeals, made following submission-- (i)that the price differential levied on the appellants amounts to levy of tax which power is the exclusive preserve of the Legislature and the Executive Authority could not have imposed such a levy in exercise of Section 3 of the Imports & Export's Control (Act XXXIX) of 1959; (ii)That the learned Judge in Chamber failed to appreciate that the impugned Notification No, 62 (66)/Import-R dated 19.8.1966 is not supported by any material on record and the department did not furnish any details on the basis of which the differential amount had been assessed; (iii)That the subsequent validation vide the Validation Act, 1977 and the price differential already imposed and worked out was not tenable and that by itself indicates that at the time when it was levied, the respondent authority had no statutory power to impose the same; (iv)That the learned Judge in Chamber fell in error in not appreciating the law laid down in Lever Brothers (Pakistan) Limited and 9 others vs. Government of Pakistan through Secretary, Ministry of Finance and 2 others (1984 CLC 227); In support of the submissions learned counsel relied on Mir Ahmad Nawaz Khan Bughti vs. Superintendent, District Jail, Layallpur and others (PLD 1966 SC 357), The Federation of, Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi vs. Saeed Ahmad Khan (PLD 1974 SC 151) Federation of Pakistan and another us. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) and Muhammad Sharif vs. Muhammad Saeeduz Zaman) (PLD 1968 Lahore 122).
4. Learned counsel for the appellants Mian Nisar Ahmad, Advocate (in ICAs Nos, 554, 555 and 556 of 2000), adopted the arguments of the learned counsel for appellants in ICAs Nos, 505 and 506/2000 but additionally he made submissions with regard to condonation of delay in filling the afore-referred Intra Court Appeals. The said applications have been disposed of through separate order whereby delay in filing the appeals was condoned.
5. Mr. Sher Zaman Khan, the learned Deputy Attorney General for Pakistan defended the impugned order and contended as under:--
(i) That the office of the Chief Controller of Import and Export, Government of Pakistan, was abolished in 1993 and the functions of the said office have been bifurcated and assigned to Banks, Customs Department. Export Promotion Bureau and the Ministry of Commerce. The record was transferred accordingly, the same was not available and, therefore, it may not be possible for the department to furnish details of the material which formed basis of the differential amount worked out by the respondent authorities; (ii)That the price differential was levied by various notifications and these were validated under Section 7 of the Import of Goods (Price Equalization Surcharge) Act (No, III) of 1967. Since the notifications stand validated, by a Legislative enactment, the same, is not open to exception; (iii)That the Parliament has the power to enact laws, which have retrospective effect. He added that it is settled principle of law that when Statute affects substantive rights it operates prospectively unless by express enactment or necessary enactment a retrospective effect nas been given. Section 7 of Import of Goods (Price Equalization Surcharge) Act (No, III) of 1967 reflects that Legislative intendment. In support of the submissions, the learned Deputy Attorney General for Pakistan relied on Zakaria H.A. Sattar Bilwani and another vs. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi (2003 SCMR 271), Khan Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607) and Malik Gul Hassan & Co. vs. Allied Bank of Pakistan (1996 SCMR 237); (iv)That Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 envisages a discretionary jurisdiction with this Court and even, on legal or moral grounds, if a case for interference is made out, this Court may not exercise this discretion if it affects public revenues.
This is in line with the law laid down in Government of Pakistan through Ministry of Finance and Economic Affairs and another vs. Facto Belarus Tractors Limited (2000 SCMR 112) and Pakistan through Ministry of Finance and Economic Affairs and another vs. Facto Belarus Tractors Limited (PLD 2002 SC 208); (v)That the impugned order in para 8 and 13 contains valid reasons for the dismissal and no case for interference is made out; (vi)That the scope of appeal against the order of the learned Judge in Chamber is limited. It does not require re-hearing the matter and if the order impugned is well reasoned, then the discretionary power is rarely exercised by this Court.
6. We have heard learned counsel for the parties, have gone through the precedent case law and have given anxious consideration to the submissions made at the bar and the issues raised.
7. The appellants, in their Constitutional petition, had primarily, challenged the vires of the Import of Goods (Price Equalization Surcharge) Act (No, III) of 1967 which came into effect on 5.6.1967. Section 7 of which validated the notifications issued and order passed thereunder prior to the enforcement of the Act. The said section reads as under:-- "S.7. Validation.--The price differential levied and collected, or purported to have been levied and collected, by or in pursuance of the Ministry of Commerce Notification No, SRO, 49(R)/66, dated the 23rd April, 1966 or by or under any rule, order notification or other instrument made or issued under the Imports and Exports (Control) Act, 1950 (XXXIX of 1950, shall, subject to necessary adjustment, be deemed to have been levied and collected as price equalization surcharge and the goods on which such price differential has been levied shall be deemed to have been declared to be specified goods as if this Act were in force at the time when such price differential was levied and collected."
8. The precise contention of appellants' learned counsel with regard to the afore-referred Act was that no retrospective validation could be accredited to an executive order, which was passed without any lawful authority. We have considered the precedent case law to which reference has been made by appellants' learned counsel and are of the view that the same is distinguishable and is not applicable to the facts in hand. It is now a settled principle of law that the Legislature has the authority to provide for retrospective application of an Act. In Malik Gul Hassan & Co. vs. Allied Bank of Pakistan (1996 SCMR 237), the August Supreme Court, at page 242, held as under: "It is well settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless `by express enactment or necessary intendment' retrospective operation has been given. Muhammad Ishaq vs. State (PLD 1956 SC (Pak.) 256 and State vs. Muhammad Jamil (PLD 1965 SC 681). This principle was affirmed in Abdul Rehman vs. Settlement Commissioner (PLD 1966 SC 362). However, statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to a substantive right."
9. The vices and the retrospective application of Section 7 of Import of Goods (Price Equalization Surcharge) Act (No, III) of 1967 came up for consideration before a Division Bench of Karachi High Court in Quality Steel Works Limited vs. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Commerce, Islamabad and 3 others (1985 CLC 300), wherein at page 303, while repelling the contention and dismissing the petition, the Court observed as under: The legal question canvassed before us is whether Section 7 of Act III of 1967 has achieved the purpose set by the legislature as the Notifications were issued after the conclusion of the contracts for the import of the goods in question. The transactions were past and closed and as such it cannot be given retrospective effect. The plain meaning of Section 7 is that the material and relevant provisions of Notifications, orders, actions and recoveries of the levy of Price Equalization Surcharge are included in Section 7 and shall be deemed to have keen included at all material times in it. In other words, what Section 7 provides is that by its order and force, the levy of Price Equalization Surcharge will be deemed to have been recovered because the provision in relation to the recovery of the said levy of Price Equalization Surcharge have been incorporated in the Act itself. The command under which the levy would be deemed to have been recovered would, therefore, be the command of the legislature, because all the relevant notifications, orders and actions have been adopted by the statute itself.
It would be seen that the Act instead of making fresh provisions in the Act itself, reference in the Act was made to notifications and orders, which were already issued. The validating Act has removed the lacuna and has validated the levy and collection of the Price Equalization Surcharge retrospectively. The next contention that the provisions as made by Section 7 provides that highest rate as an Additional duty as the Price Equalization Surcharge and the notification provided price differential is again without any merit. When the provisions of Section 7 are given effect to, then there is no conflict betyveen the price differential and the Price Equalization Surcharge."
10.Even prior to the afore-referred Division Bench Judgment, the Karachi High Court had declared Section 7 of Import of Goods (Price Equalization Surcharge) Act (No, III) of 1967 to be intra vires and while dismissing several suits in Messrs DADA Limited Karachi vs. Secretary to the Government of Pakistan, Ministry of Commerce and another (PLD 1974 Karachi 254), at page 261, held as under:-- "My conclusion, therefore, is the recovery of the price equalization surcharge from the plaintiffs was duly validated under Section 7 of Act III of 1967 and it is not, therefore, open to question".
11.Learned counsel for the appellants have not referred to any contrary view of any High Court in Pakistan or of the August Supreme Court to justify interference in these appeals. The reference to the case reported in Lever Brothers (Pakistan) Limited and 9 others vs. Government of Pakistan through Secretary, Ministry of Finance and 2 others (1984 CLC 227) is of no avail to the appellants as primarily a factual controversy had been raised in the said case, with the mutual consent the department was asked to produce the record, and it was agreed that in the event of failure to produce the record, the petitions would be decided on the assumption that there existed no record in support of the impugned demand made from the petitioners"., the record could not be produced, the Court, in the afore-referred circumstances, at page 232, held as follows:-- "In the instant case as the contention of the petitioners inter alia was .that there existed no basis on which above S.R.O. was issued and as Respondent No, 3 has failed to produce any record to indicate the basis, the above petitions are to be decided on the assumption that there existed no record in support of the above impugned demand. In this view of the matter, the petitioners are entitled to succeed on the above ground."
The question of vires of Section 7 of Import of Goods (price Equalization Surcharge) Act (No, III) of 1967 was not touched, the judgment in the said case was delivered on 27th October, 1983.
Interestingly the Division Bench .consisted of the same learned Judges (Ajmal Mian and Haider Ali Pirzada, JJ.) who pronounced the latter judgment reported in Quality Steel Works Limited vs. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Commerce, Islamabad and 3 others (1985 CLC 300) wherein they upheld the vires of the afore-referred Act and the validations of the notifications and orders in question. In the instant cases unlike the case reported in Lever Brothers (Supra), no factual controversy was raised before the learned Single Judge and no prayer was made to requisition the record. It is rather late in the day to raise such a controversy in appeal and that too after almost 37 years of the transactions.
12. For what has been discussed above, we do not find any merit in ICA Nos, 505/2000, 506/2000, 554/2000, 555/2000 and 556/2000, which are hereby dismissed with no order as to costs.