' ABDUL HAMEED DOGAR, J.--- These appeals by leave' of this Court arise out of order, dated 29-9- 2000 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Review Applications Nos.83 of 2000, 84 of 2000, 85 of 2000, 86 of 2000, 87 of 2000, 88 of 2000, 89 of 2000 and 90 of 2000 filed by respondents and others were allowed and order dated 21-6-2000 passed in Writ Petitions Nos.10556 of 2000, 10557 of 2000, 10558 of 2000, 10559 of 2000, 10560 of 2000, 11091 of 2000, 11092 of 2000, 11093 of 2000, 11094 of 2000, 11095 of 2000, 11096 of 2000, 11097 of 2000, 11098 of 2000, 11099 of 2000, 11100 of 2000, 11324 of 2000, 11325 of 2000, 11326 of 2000 and 11327 of 2000 was reversed.
2. Briefly, stated the facts of the case leading to the filing of instant appeals are that Federal Government vide S.R.O.No,898(I)/99, dated 4th of August, 1999, launched a scheme with a view to provide incentive and save Foreign Exchange in the Import Policy Order, 1999, wherein it was provided that import of used machinery/equipments shall be released without payment of any customs duty or sales tax with the only stipulation that such machinery had to be imported between 1st of July, 1999 to 30th of June, 2000. Respondents the Pakistanis living abroad in all the above appeals imported used dump trucks from Singapore Port Osaka Japan Port, Dubai, U.A.E.
Port, Yokohama Japan Port and Tokyo Japan Port for Faisalabad via Karachi which reached the port on 2-3-2000. The appellants amended Table-III of the Finance Act, 1999 through S.R.O.
No,116(I)/2000, dated 7-3-2000 whereby withdrew the abovementioned concession and asked the respondents to pay full payment of the customs duty and in case of non-payment of the same, goods imported by them were to be auctioned as they filed their Bill of Entry on 9-3-2000. Notice under section 82 of the Customs Act, 1969 was also issued against the respondents. The above act of the appellants was challenged before the learned High Court through writ petitions mentioned above by the respondents which were dismissed on 21-6-2000.
3. Feeling aggrieved, respondents filed above mentioned review applications before the same learned Judge of the Lahore High Court which were allowed vide impugned order, dated 29-9- 2000.
4. On 12-1-2001 while hearing the petitions leave to appeal, this Court granted leave to consider the following:-- "Considering the conflicting view in the judgment delivered by this Court in C.P. No,2427-L of 2000 (Muhmood A. Sheikh v. The Federation of Pakistan and others) and to render the hortative opinion leave to appeal is granted in all these cases."
5. We have heard Mr. Jawahar A. Naqvi, learned counsel for the appellants and Mr. Ihsanul Haq Chaudhry, learned counsel for respondents and have gone through the record and the proceedings of the case in minute particulars.
6. Learned counsel for the appellants vehemently objected to the impugned order and contended that the learned Judge had already dismissed the writ petitions of the respondents by an exhaustive order, but allowed review applications in short slip manner without having any material or any error apparent on the face of the record. According to section 30 of the Customs Act, the rate of the duty is to be charged on the date of filing of Bill of Entry and not on the date on which consignment landed at the Port in Pakistan. According to him, the learned Judge has committed serious error in holding that a discriminating treatment was made by the appellants and the machinery which had reached in Pakistan before 7-3-2000 was liable to be cleared without payment of any customs duty. According to him, as the learned Judge himself in his earlier order found this contention as devoid of force and dismissed the claim of the respondents, as such impugned order is not sustainable in law. Even provisions of sections 123, 30 and 31-A of the Customs Act have wrongly been constructed by the learned Judge in his impugned order, as such it being illegal ab initio and without jurisdiction is liable to be set aside.
7. On the other side, Mr. Ihsanul Haq Chaudhry, learned counsel for the respondents contended that the impugned order is well in accordance with law and was passed in a proper manner. According to him, respondents were entitled to the concession/exemption under the earlier S.R.O. As they imported Dump Trucks under the assurance/ guarantee of the said S.R.O. Thus, cannot be deprived of vested right created in their favor. He contended that S.R.O. No,116(I)/2000 dated 7-3-2000 being an executive act issued in exercise of delegated powers, could not be made applicable retrospectively, and it did not affect the contract/agreement for sale already entered into, goods shipped to Pakistan and those arrived in Pakistan within the period fixed in the Finance Act, 1999.
8. As regards leave granting order, it would be appropriate to clarify firstly, that there was obviously no conflicting view in the judgment delivered by this Court, in Muhmood A. Sheikh v. The Federation of Pakistan and others Civil Petition No,2427-L of 2000. On its perusal, it is found that a Full Bench of this Court delivered titled judgment on the issue in controversy and dismissed the petition and refused leave to appeal. It was held that Notification No,S.R.O.116(I) of 2000 dated 7-3-2000 referred to above was valid and was made by virtue of amendment of section 18 of the Finance Act, 1999 whereby entries in column III had been omitted and the customs duty became livable. In this case, though it was contended that by virtue of the amendment in section 18 of the Finance Act, 1999 entries in Column III had been omitted and the customs duty became leviable, but the respondents had shipped their goods before the issuance of the Notification amending the Finance Act, therefore, they were not liable to pay any duty. The said contention was found devoid of force in view of section 31-A of the Customs Act which provides for the payment of duty notwithstanding any vested right which may have been created in favor of any person on account of opening of the letter of credit or having entered into any other contract. It was also held in the said judgment that section 31-A of the Customs Act clearly takes away vested rights and the legislature is competent to take away such right under the law.
9. At this juncture, it would be appropriate to refer conflicting findings of learned Judge in Chambers made in both the orders passed by him about the release of goods imported by the respondents.
' Para.4 of order, dated 21-6-2000: "I am not impressed by this contention of the learned counsel which cannot be accepted in view of the clear language of section 31-A read with sections 30 and 31 of the Customs Act, 1969 which ordains that for the purpose of sections 30 and 31 of the Act, the rate of duty applicable shall be the duty in force on the day when the Bill of Entry is filed, even in cases where contracts and agreements for the sale of goods have been arrived at before the exemption was withdrawn or the letter of credits had been opened in that respect."
' Para.3 of the impugned order: "The contention appears to be well-founded. The petitioner is entitled to have the machinery cleared, which had reached Pakistan before the Notification in question was withdrawn on 7-3- 2000 in accordance with the law then in force."
10. On perusal, former order seems to be more appropriate, elaborate and in accordance with law whereas the latter is not only passed in short slip manner but is also non-speaking, illegal, ab initio and without any justification.
11. This Court in the case of Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 35 while dealing with the similar aspect of the matter has held as under:-- "Thus, we are of the opinion that as the petitioner-companies who have opened L.Cs. After the issuance of amended Notification No,S.R.O.584(I)/95 dated 1st July, 1995 and perhaps have also submitted the Bills of Entry are not entitled for the benefit of original Notification S.R.O. No,279(I)/94 dated 2nd April, 1994 because they were not placed in similar circumstances qua the power generating companies who have fulfilled the conditions laid down in the unamended notification and have also filed Letters of Credits and Bills of Entry prior to its amendment. Moreover in view of above discussion the powers of competent authority cannot be curtailed and a notification once issued cannot be allowed to remain intact for all times to come notwithstanding the fact that the circumstances had changed and it is not possible for the Government to extend the benefit of exemption of duty to the companies who have not yet decided to install projects of power generation in the country or intending to do so in new circumstances prevailing after the date of issuance of amended notification after 1st July, 1995."
12. Admittedly, an exemption from the payment of customs and sales tax was allowed by the Government vide S.R.O. No,898(I)/99, dated 4th August, 1999 to import machinery to Pakistan. The respondents while availing this concession brought the goods from abovementioned destinations which reached Karachi Port on 2-3-2000. In the meanwhile Government withdrew the above concession vide S.R.O. No,116(I)/2000, dated 7-3-2000 and directed the respondents to pay full payment of the customs duty and declared that in case of non-payment of the same, the goods imported by them would be auctioned. As per record respondents filed Bill of Entry on 9-3-2000 i,e, after the withdrawal of the above concession/exemption. In view of provisions as ordained in sections 30, 31 an 31-A of the Act and the case-law referred (supra), the date for determining rate and amount of duty applicable to any imported goods shall be the rate and amount chargeable on the date of the submissions of the Bill of Entry to concerned authority. Thus, the respondents are not entitled to the above mentioned exemption.
13. Accordingly, the impugned order being illegal, ab initio and without jurisdiction is set aside and the appeals are allowed with no order as to costs.