'MUNIR A. SHEIKH, J.--- This appeal by leave of the Court is directed against the judgment, dated 13- 11-1996 of the High Court of Sindh Karachi whereby Constitution petition filed by the appellant has been dismissed.
2. The machinery in dispute was imported by, one Muhammad Nasir on 7-9-1991, before which on 2-6-1991, according to the appellant said Muhammad Nasir entered into an agreement with him for the sale of said machinery. According to the terms and conditions of this agreement, appellant took upon himself to pay Government taxes, customs duty on the import of said machinery with a provision of execution of power of attorney in his favor by Muhammad Nasir to act for him and on his behalf for the purpose of receiving any amount due on the import of said machinery. S.R.O.
No,50(I)/1992, dated 28-1-1992 was issued according to which such machinery which had been imported for setting up new units or modernization of the existing units were exempted from payment of customs duty and other Government dues which was substituted by S.R.O. No, 484(1)/1992, dated 14-5-1992.
3. The case of the appellant was that machinery was cleared after payment of customs duty and other Government dues but it was exempted from payment of customs duty, etc., under the said S.R.O. It was required to produce certificate of its installation within the stipulated period in the area provided in S.R.O. The case of the appellant was that the machinery was installed in such area and on the basis of said agreement of sale executed in his favor by Muhammad Nasir, he filed claim in his own right for refund of the taxes and duties already paid which was rejected by the Assistant Collector Customs on the ground that appellant was not the importer as such could not claim refund. It was also held that the machinery was old one, therefore, it was not covered by the said S.R.O. As such no refund could be claimed. Appeal filed by the appellant was dismissed on 18-1- 1993 by the Collector and revision petition also met the same fate. Constitution petition filed by the appellant has been dismissed through the impugned judgment, dated 13-11-1996 by learned Division Bench of the High Court of Sindh against which this appeal by leave of the Court is directed.
4. Leave was granted to consider whether the appellant being purchaser of the machinery could maintain the claim for refund of the customs duty paid on the import of machinery under the rules and that he could claim the same in his own right.
5. The argument raised by the learned counsel for the appellant that under agreement of sale, he was entitled to maintain the claim in his own right for refund of the amount is not sustainable. The refund of customs duty, etc., could be claimed under the law by the importer of the goods. If customs duty was paid by the appellant on behalf of the importer as attorney under the agreement with the importer, he may have a right to recover the same from the importer through suit in a Court of plenary jurisdiction on its refund to the importer. Under the relevant law and the notification under which the claim was lodged, it was clearly, provided A that it was importer who could claim refund of the customs duty, etc. It was admitted by the learned counsel for the appellant that initially customs duty was paid in the name of Muhammad Nasir and the appellant never got himself acknowledged as importer before the Customs Authority for the purpose of claiming refund in his own right. The, power of attorney which was executed in his favor by Muhammad Nasir also provided that he could perform a number of acts on his behalf, but it was not got registered though the same required registration. The claim was filed by the appellant in his own right and not on behalf of Muhammad Nasir as his attorney and until today, he (Muhammad Nasir) has not claimed the refund nor he was made party in the proceedings before the departmental authority.
6. The question whether it was machinery which was exempted from payment of sales tax or person who had imported the same is of no significance as notification expressly provided that it was importer who could claim the refund and no one else. If the appellant has suffered any loss as purchaser on account of inaction of Muhammad Nasir in the matter of claiming refund, he may, if law provides any remedy sue him.
7. For the foregoing reasons, this appeal has no merit which is hereby dismissed. No order as to costs.