' SABIHUDDIN AHMED, C.J.---The petitioner had imported certain lubricant oils and grease from Saudi Arabia under a Letter of Credit dated 19-8-2001, which arrived in Karachi on or about 13-9- 2001. It may be added that the goods in question were liable to central excise duty at the rate of 50% ad voleram under the First Schedule to the Central Excise Act. However, the aforesaid goods were exempted from the levy of central excise duty in terms of S.R.O. 454(1)/96 dated 13th June, 1996 and such exemption was available when the petitioner entered into purchase contracts with foreign suppliers and established Letters of Credit. Nevertheless by the time the goods actually arrived in Karachi and respective Bills of Entry were filed. The exemption stood withdrawn vide Notification dated 10th September, 2001 and consequently its benefit was denied to the petitioner.
2. The petitioner's contention in a nutshell is that they had acquired vested rights as to the benefit of exemption and the respondents were estopped from applying Notification dated 10th September, 2001 to conclude contracts in terms of the law declared by the Honourable Supreme Court in Al-Samrez Enterprises v. Federation of Pakistan 1986 SCM R 1917. On the other hand it is contended by the respondents that under section 4(4) of the Central Excise Act central excise duty on imported goods is to be assessed on the value determined according to section 25 of the Customs Act and under the Fourth proviso to Rule 9. It is to be charged and collected in the same manner and at the same time as if it were duty of customs payment under the Customs Act. Since the effect of the pronouncement in Al-Samrez's case has been nullified by the incorporation of section 31-A of the Customs Act, the same provision would apply to the assessment of central excise duty and the petitioner would not be entitled to the benefit of exemption.
3. We have carefully heard Mr. Muhammad Siddique Mughal learned counsel for the petitioner and Mr. Nadeem Azhar Siddiqui, D.A.-G. As well as Raja Muhammad Iqbal on behalf of the respondents Nos.2 and 3. Learned counsel for the petitioner squarely relied upon recent Division Bench judgment of this Court in Kohinoor Textile Mills v. Federation of Pakistan 2002 PTD 121 wherein a similar question was involved. The Court held that no amendment of the kind envisaged in section 31-A of the Customs Act having been enacted in the Central Excise Act, the vested rights to the benefit of an exemption having been acquired could not be destroyed through a subsequent notification. Reliance was placed upon the pronouncement of the Honourable Supreme Court in M.Y. Electronics (Pvt.) Ltd. v. Government of Pakistan 1998 SCM R 1404 wherein their Lordships held that the mere fact that under section 3(5) of the Sales Tax Act such tax was payable at the same time and in the same manner as customs duty did not entail the application of section 31-A to the Sales Tax itself.
4. It was argued on behalf of the respondents that section 31-A of the Customs Act would be applicable in view of the provisions of section 4(4) of the Central Excise Act stipulating that when any article is chargeable to duty at the import stage it will be assessed to duty on the value determined in accordance with section 25 or 25-B of the Customs Act and the Fourth proviso to Rule 9 requiring that excise duty in respect of goods imported into Pakistan shall be charged and collected in the same manner and at the same time as if it were duty of customs payable under the Customs Act. The same plea was raised in the above mentioned case of Kohinoor Textiles and repelled by each of the learned members of the Bench for somewhat different reasons. Sarmad Jalal Osmany, J, held that Fifth proviso to rule 9 was only a machinery provision for collection of central excise duty and has no bearing upon the charge which could only be levied under the statute. Ghous Muhammad, J (as he then was) in a concurring note conceded that the rule did not refer to "charge" apart from collection but observed that under section 37(2) rule making power was only confined to assessm ent or collection but not for creation or imposition of a charge.
Therefore, if the rule was to be so broadly construed as to create a charge itself it would have to be held ultra vires the parent statute.
5. Nevertheless, it may be observed that after the pronouncement of the Supreme Court judgment in M.Y. Electronic's case 1998 SCM R 1404, an amendment was brought about in section 6 of the Sales Tax Act, 1990 through the Finance Act, 1998 making the provisions of section 31-A of the Customs Act applicable to Sales Tax on goods imported into Pakistan. Similarly after pronouncement of this Court in Kohinoor Textile Mill's case a proviso to section 3 in the Central Excise Act, 1944 was added through Ordinance XXXIV making section 31-A of the Customs Act applicable to both levy and collection of excise duty on goods imported into Pakistan. This amendment came into effect prior to a date on which the goods arrived in Pakistan and with the application of section 31-A Customs Act any earlier date of execution of contract became irrelevant. In view of the change in legal position, the law laid down in Kohinoor Textile Mills does not seem to be applicable and therefore, we are constrained to dismiss this petition.