ZAHID KURBAN ALAVI, J.---In this petition the petitioner has prayed as follows:-
(a) To declare that the impugned order passed by the respondent No.4 is without any cogent reasons and hence is unlawful and without jurisdiction and is of no legal effect;
(b) To declare that the original Notification, dated 16-5-1991 was issued arbitrarily, capriciously and has no legal effect;
(c) To declare that the issuance of subsequent amending Notification, dated 10-9-1991 is an act of receding/rectifying the error committed in the original Notification and to direct the respondents to refund the extra amount recovered under ITP, dated 16-5-1991;
(d) To direct the respondents to refund the amount of taxes over charged from the petitioner at least in excess of IT? Notification, dated10-9-1991 fixing ITP of TV sets of 14", 17" and 12";
(e) To grant the cost of the petition;
(f) To grant such further/better relief as this Honourable Court deems fit under the circumstances of the case.
2. Briefly the facts of the case are that the petitioner imported TVs under the brand name of "Electra" from Peoples Republic of China. The televisions were warehoused pending decision of the respondents Nos. 3 and 5 for fixing of imported price. The respondent No.3, i.e. The Controller of Customs (valuation) through S.R.O. No.Nil(KE)/91, dated 16-5-1991 issued a notification under section 25-B of the Customs Act wherein value of goods was fixed as per Table mentioned therein.
The value was based on colour televisions as well as black and white televisions and the country of origin was specified as Peoples Republic of China. Three different categories of televisions were mentioned i.e. Depending on their sizes. The ITP was fixed on the basis of this notification when the consignment was imported. The petitioner, however protested against the fixation of value as according to them section 25 of the Customs Act shows the basis on which value has to be determined The value has to be assessed under section 25 on the basis of the declared value which in turn is supported by the documents of importation. On the other hand, imported price is fixed by the customs authorities under section 25-B, the goods were cleared from the bond after payment of duty and taxes on the basis of the ITP fixed under the said notification.
3. Since the petitioner had made representations against the ITP, dated 16-5-1991 it was revised by another notification No. Nil, dated 10-9-1991. By the notification, dated 10-9-1991 a revised price list was formulated. Since the petitioner had cleared their goods before the issuance of the amended ITP the refund was claimed before the respondent No.2,however, the refunds claim was not entertained and ultimately the matter was agitated before various forums and it resulted in this petition being filed.
4. Along with this petition the petitioner has annexed the documents on which it has relied upon and also moved several applications for interim relief. They have also placed on record copies of invoices that have been issued by the exporters in the Peoples Republic of China.
5. Parawise comments were filed by the respondents. According to the respondents, the ITP became applicable at the time when the goods were imported and the notified prices were fixed after thorough investigation and after holding of meeting with importers and representatives of various TVs. Manufacturing association. They also were of the opinion that the prices were fixed after obtaining different rates from the suppliers in China. After conducting investigation the prices were fixed and notified. In spite of this when agitation was made by the Chambers of Commerce the views of the manufacturers were obtained and once again prices of televisions in the CKD condition were also obtained. It was apparent from the prices of televisions in CKD condition that there was a close proximity of the value given through independent sources. Based upon all these the ITP was revised at the reduced price. They have, therefore, defended the ITP so issued and have also maintained that the revised price is a continuous process by virtue of which ITPs are revised and notifications are issued under section 25-B of the Customs Act from time to time so as to keep it in conformity with the actual market prices.
6. We have heard Raja Qasit Nawaz, on behalf of the petitioner and Messrs Ziauddin Nasir, learned Standing Counsel and Raja Muhammad Iqbal, for the respondents and have gone through the material placed on record.
7. The only point that seems to be a matter of agitation is whether a notification can be prospective or retrospective. According to the counsel appearing on behalf of the petitioner in the case of Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others (1992 SCM R 1652) a Full Bench of the Hon'ble Supreme Court had observed and held that a notification which purports to impair an existing or vested right or imposes new liability or obligation cannot operate retrospectively in the absence of legal sanction. They had also held that notification which confers benefit can operate retrospectively.
8. In this case by SRO No. Nil/91, dated 16-5-1991 televisions imported through Peoples Republic of China were made dutiable depending on their sizes and whether they were black and white. The ITP was fixed under section 25-B of the Customs Act, 1969. Upon agitation, a fresh notification bearing No. Nil/91, dated 10-9-1991 was issued, whereby amendments were directed to be made in the S.R.O. No. Nil (KE)/91, dated 27-7-1991. The notification was made operative from 12-9-1991.
However, by virtue of the decision given in the Army Welfare Sugar Mills Limited's case the beneficial aspects of B the notification can be given retrospective effect. Since the petitioner initially had agitated against the impugned notification, dated 16-5-1991 and by virtue of the subsequent notifications having been issued rectifying the original notification it is the petitioners claim that their C grievances had not been redressed and that the amount that they were forcibly asked to pay by virtue of the notification, dated 16-5-1991 should be refunded to them.
9. We, therefore, allow this petition and hold that the issuance of the notification, dated 7-9-1991 would be retrospective in nature by virtue of the dicta laid down in the Army Welfare Sugar Mills Limited's case, referred above. Any refund, due or payable could be demanded from the concerned authorities by the petitioner upon making application and the concerned authority shall pass an order granting such a refund, if permissible under the law.