EJAZ AFZAL KHAN, CJ. --- By this single judgment, we propose to dispose of Writ Petitions Nos. 1134, 1191, 1208, 1239, 1246 and 1617 of 2004, 5, 6, 157 and 158 of 2005, 50, 51, 223, 844 and 854 of 2006 and 1049 of 2007, wherein the petitioners have asked for the issuance of an appropriate writ directing the respondents not to levy and collect the Federal Excise and Regulatory Duty on edible oil under any law which has not been extended to the tribal area in terms of Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned counsel appearing on behalf of the petitioners contended that where the manufacturing units of the petitioners are located in tribal area, anything imported from abroad for their, consumption cannot be subject to the levy of regulatory or excise duty, so long as, the laws imposing such levy, are not extended to such areas, The learned counsel next contended that levy and collection of even Sales Tax under different hue and colour would also be uncalled for under the law, when the Sales Tax Act has not been extended to the tribal area. The learned counsel then contended that even the issuance of S.R.O.No. 503(1 )/2004, dated 12.6.2004 is a device to circumvent the provisions of Article 247(3) of the Constitution, therefore, it is also liable to be set at naught. The learned counsel to support his contention placed reliance on the case of Messrs Gul Cooking Oil v. Government of Pakistan and others, 2002 PTD 2079. The learned counsel further contended that though in the case of Messrs Master Foam (Pvt.) Ltd. And 7 others v.
Government of Pakistan and others, PLD 2005 SC 373, the taxable event is held to be the import of goods irrespective of their onward transportation to another place but it being the case of AJK does not have any relevance to the instant case, as in the former case any amount of sales tax levied under the Act can be adjusted as an input tax under the provisions of Sales Tax (Adoption)
Act of AJK, while in the latter case its burden is borne by the consumer in the tribal area. The learned counsel by concluding his arguments, submitted that the where the goods are taken from the Sea Port to the Bonded Ware House located in the tribal area, levy in any form cannot be collected under any law or S.R.O, issued thereunder, if it has not been extended to the said and that the amount collected without lawful justification is liable to be refunded.
3. As against that, the learned counsel appearing on behalf of the respondents contended that since the taxable event for the purposes of Central Excise Act, 1944, Customs Act, 1969 or Sales Tax Act, 1990 is import of goods into Pakistan, it is immaterial whether any of these enactments have been extended to the tribal area or. Not. The learned counsel next contended that transportation of the goods imported from the Seaport to the Bonded Ware House or postponement in payment of levy cannot change the nature of the taxable event, as levy and payability of duty are two different things. The learned counsel to support his contention placed reliance on the Case of Messrs Shroof and Co. v. Municipal Corporation of Greater Bombay, 1989 Supp (1) SCC 347 and the case of NB Sanjana v. Eliphinstone Spinning and Waving Mills, AIR 1971 SC 2039. Claim of refund, the learned counsel added, cannot be urged in a Constitutional petition, as it being related to the turf of factual controversy, cannot be trodden over by this Court in its Constitutional jurisdiction.
4. We have gone through the record carefully and considered the submission of the learned counsel for the parties.
5. Whether it is regulatory duty, excise duty or Sales Tax, the taxable even for the purpose of Central Excise Act, 1944, Customs Act, 1969 or Sales Tax Act, 1990 or S.R.Os. Issued thereunder, is import of goods into Pakistan. Once the goods are imported into Pakistan, they are liable to be taxed under the Acts mentioned above or the S.R.Os. Issued thereunder regardless altogether of the fact that those have been imported for being transported to or consumed in an area where neither of the enactments mentioned above or S:R.Os. Issued thereunder are applicable. If is true that neither Central Excise Act, 1944 nor the Amendments made in the Customs Act nor the Sales Tax Act including the S.R.Os. Issued under these Acts have been extended to the tribal area, but it would be absolutely insignificant when the legislature in its wisdom, has made. The levy contingent only upon the import of the goods into Pakistan. Their subsequent destination is just a terra incognita for the purposes of these enactments and the S.R.Os. Issued there-under, In the case of Messrs Master Foam (Pvt.) Ltd. And 7 others v. Government of Pakistan and others (Supra), the Honourable Supreme Court after examining the definition of the expression 'import' and considering a sting of judgments held as under:- "From above it is clear that right from 1963 till date the Courts in Pakistan have consistently given the word 'import' its natural and ordinary meaning of 'bringing ' into' the country and have rejected the imposition of artificial constraints on it, such as those imposed by the American 'doctrine of original package. It being so, we are of the view that there is no scope that the word 'import' should be given a different meaning than what appears in Section 3(1 )(b) of the Act of 1990, especially when there is nothing in the statute to indicate that different meaning was intended by the Legislature, It appears that the Legislature, by not defining he word 'import' in the Act of 1990 desired the interpretation of said word in accordance with the . Following principles:- "........... When a Legislature uses in a statute a Legal term, which has received a judicial interpretation, it is to be presumed that the term has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the statute."
6. Another paragraph which further elucidates the matter reads as under:--- "Thus, the goods were imported into Pakistan by the appellants when they entered the territory of Pakistan and became liable to taxation accordingly, It is immaterial that ultimately they were to be transported to AJK. This is for the reason that import into Pakistan, is a distinct taxable event independent of any event following thereafter."
7.. The above-quoted paragraphs leave no doubt in our mind that the taxable event is import of goods, which has nothing to do with their onward transmission to an area whether settled or tribal.
Therefore, the argument that where none of the Acts or the S.R.Os. Issued there under has been extended to the PATA or FATA in terms of Article 247(3) of the Constitution, the respondents have no authority to levy the duty, is not tenable, It is all the more untenable, when the incidence of levy is independent of all the subsequent events. Such argument would have had some force, had the business activity carried in the tribal area been subjected to such levy. This is what we held in the case of Messrs Lal Ghee Oil Mills (Pvt.) Ltd. v. Government of Pakistan and 6 others rendered in Writ Petition No. 589 of 2005 decided on 28.4.2006 and this is what we re-affirm in the instant cases. We, thus, would not hesitate to hold that the import of goods being within the regime of the Acts mentioned above, cannot be exempted from the levy.
8. The argument that where the goods are taken from the Seaport to the Bonded Ware House located, in the tribal area, levy in any form cannot be collected under any law or S.R.O, if it has not been extended to the said area, too, has not impressed us, when levy and collection are two distinct events. The former becomes a fait accompli on the arrival of the goods at the Seaport notwithstanding the latter is done at a different stage or place. The cases of Messrs Shroof and Co. v. Municipal Corporation of Greater Bombay, 1989 Supp (1) SCC 347 and NB Sanjaha v. Elphinstone Spinning and Weaving Mills, AIR 1971 SC 2039 may well be. Referred to in this behalf. The question with regard to refund of the duty collected, thus, does not arise in this backdrop. If at all there is any discrepancy in collection, it being related to the factual controversy can well be urged in a proper forum.
9. Having thus considered, we do not feel inclined to issue with writ asked for. We, therefore, dismiss these writ petitions alongwith the C.Ms.