' IJAZ AHMAD CHAUDHRY, J.--Through this single judgment, I intend to dispose of Writ Petitions Nos.I5680 of 2004 and 910 of 2006 alongwith the instant writ petition as common questions of law and facts are involved in these petitions.
2. Vide S.R.O. No,333(I)/2002 dated 15-6-2002 the Central Excise Duty at the rate of 50% was chargeable on Mineral Greases imported, produced or manufactured in Pakistan. However, vide S.R.O. No,477(I)/2003 dated 7-6-2003 the Federal Government amended the former S.R.O. Whereby rate of central excise duty was reduced from 50% to 25%. The petitioners imported Mineral Greases under the amended S.R.O., and after duly paying the Central Excise Duty @ 25% and other taxes specified in the official tariff the material was released.
3. Now the petitioners have been issued show-cause notices under section 32(3) of the Customs Act, demanding short-levied of 25% Central Excise duty by explaining that originally the duty was payable at the rate of 50% as per S.R.O. 333(1)/2002 dated 15-6-2002, but the same was misprinted as 25% in amended S.R.O. 477(1)/2003 dated 7-6-2003. Through these petitions, the petitioners have challenged the aforesaid demand notices on the grounds amongst other that under S.R.O.
477(1)/2003 dated 7-6-2003 the Central Excise Duty was claimed at the rate of 25% on the basis of which, the petitioners filed their bills of entries and paid duties according to the relevant Notification as well as official tariff and the Customs Authorities, itself made and accepted the assessm ent in terms of S.R.O. 333(I)/2002 dated 15-6-2002 as amended as per official tariff (19th Edition) Vol. II for the years, 2002-2003. Therefore, petitioners are not, liable to pay the misprinted rates in the official tariff and if there is any fault in misprinting, the Customs Department is liable for the same; that the clarification issued latter cannot be made basis for levy of the taxes as petitioners have already sold out their material and now it is not possible to charge the said duty from those who had earlier purchased the consignments ; that according to section 30-D of the Central Excise Act, 1994 if the duty at the excess rate is charged by the consumers that is payable to the Federal Government and in the present case, the petitioners have not received the amount of 25%, the excess amount and therefore they could not be asked to pay the said amount. Lastly, contended that the clarification issued by the Board should have prospective effect and not the retrospective effect. To support his contentions the learned counsel has relied on PLD 1997 SC 503, 1992 SCM R 1652 and PI,D 1997 SC 582.
5(sic). Learned counsel appearing on behalf of the respondents supported the notices and submitted that the petitioners have alternate remedies of appearing before the Authorities and then to file an appeal before the Customs Appellate Tribunal and without availing the said remedies, these petitions are not maintainable; that according to section 32(3) of the Customs Act, 1969, if any duty is not levied or short levied, the respondent-authorities have jurisdiction to claim that short levied within a period of three years; that writ petitions involving the same issue have already been dismissed by this Court.
' In Writ Petition No,910/2006 it has been further contended that adjudication as per rules has already been made, final order has been passed therefore, the petitioner in the said writ petition has an alternate remedy of filing appeal under section 193 of the Customs Act; that in response to the show-cause notice petitioner never appeared before the Customs authorities and has filed this petition in which he has imported consignments in 2004 therefore, he deprived the department of full duty at the rate of 50%. Both the learned counsel lastly contended that amended S.R.O.
477(1)/2003 only clarifies duty at the local production not on the imported consignments. It was not a fresh law therefore, it can be made effective retrospectively. Reliance has been placed on 1999 SCMR 139 to contend that assessm ent is made on the tariff and the tariff clearly shows that 50% was to be charged on imported goods.
6. I have heard the learned counsel for the parties, gone through the documents attached with these petitions and also perused the case-law cited on the subject.
7. Perusal of record and the documents show that the Customs authorities accepted the bills of entries filed by the petitioners according to the amended S.R.O.. Their material was duly assessed.
Verified and finally released. For the sake of arguments if it is presumed that the petitioners imported the material knowingly to gain advantage of misprinting on behalf of the Customs Authorities then the question arises as to who was at fault? Whether the Customs authorities and petitioners in connivance with each other are responsible for the loss to the public exchequer or whether the petitioners are solely responsible for the short-levied of duty. To resolve this controversy perusal of both the S.R.Os. Would make the picture clear. In columns (3) and (4) of S.R.O. 333(1)/ 2002 dated 15-6-2002, for the goods manufactured or produced locally and for the goods imported into Pakistan, the rate of duty on Mineral Greases under heading/subheading 2710.1992, is unambiguously 50% and in the amended S.R.O. Against the same heading/subheading, in column (3), for the word "fifty" wherever occurring the word "twenty five has been substituted thus, there should be no ambiguity in the mind that the central excise duty at the rate of 25% was chargeable on the material produced or manufactured locally or imported into Pakistan. Though the Customs authorities have tried to explain through letter dated 8-6-2004 at page 51 of Writ Petition 12818/2004 that central excise duty on mineral greases H.S. 2710-1992 was notified vide S.R.O. 333(1)/2002 dated 15-6-2002 the central excise duty on mineral greases was reduced to 25% for goods produced or manufactured locally whereas the Central Excise duty on goods imported into Pakistan remains unaltered at 50%. This clarification is of no help to the Custom authorities at all for the simple reason that they have not been able to show as to how they escaped to mention 50% against goods imported into Pakistan in the official tariff which is clearly mentioned as twenty five per cent in both cases. The authorities have also not been able to place on record any document to show that persons similarly placed have been charged at the rate of 50% due to misprinting. Moreover, there is a lot of difference between short-levied or not levied and misprinting. Misprinting may be a mistake clerical or otherwise. So far the Custom authorities at their own level have not inquired into the matter as to how the misprinting has occurred in the relevant notification at the relevant place nor it intended to do so in future therefore, the petitioners are not solely responsible for the omission. Even otherwise, there is no allegation so far against the petitioners that they managed to get their material released stealthily.
Admittedly the petitioners have sold out their material and now it is not possible to charge the said duty from those who had earlier purchased the consignments, so I feel no hesitation in holding that the clarification issued by the Board can be made effective G prospectively and not with retrospective effect, therefore, there is no reason why discretionary relief should not be granted to the petitioners which according to cardinal principle comes into play to choose one of the two or more alternatives, all of which are lawful. Thus, I feel that it would not be a proper exercise of discretion to refuse relief to a party to which it is entitled under the law.
8. For what has been stated above, all the writ petitions are maintainable before this Court. Hence, the same are accepted, recovery notices issued to the petitioners are without any basis, the same are set aside. No order as to costs.