MR. JUSTICE FAISAL ARAB.-(1). Following questions were proposed for our consideration:- (1)
Whether a claim of refund filed under section 33 of the Customs Act, 1969, after expiry of one year and nine months approximately from the date of payment of duties and taxes without claiming any exemption of concession under a notification can be held payable/refundable in view of the decision of the Superior Courts specifically in the judgment of the Hon'ble Supreme Court of Pakistan in case of Messrs Pfizer Laboratories v. Federation of Pakistan and others PTCL 1998 CL. 354.
Whether the post release benefit of exemption under any notification can be allowed ignoring the conditions for exemption mentioned therein.
2. In the impugned order while examining the validity of the petitioner's claim with regard to the limitation Learned Appellate Court held as follows:- "It is evident from the records that the appellant had cleared the imported goods from customs control on 6-9-2000 and had filed refund claim on 18-6-2002. Even if, their contention that they came to know about the exemption Notification No. S.R.O. 27(I)/98, dated 17-1-1998 on the Plantation of their auditors, the inordinate delay in filing of refund claim is not fully justified.
Generally, the accounting year of the companies closes on 30th September or 31st December of the calendar year if the same is not on the basis of a financial year. The appellants have not produced the audit report of their auditors in support of their contention, it is however evident that the auditors would have pointed out this 'over payment' due to inadvertence in the month of January, 2001 while the refund claim was filed after inordinate delay on 18-6-2002. Thus the deliberate delay in filing of refund claim and that to without producing the audit report of the auditors is not justified. It is therefore held that the refund claim suffered from laches and was correctly rejected being as the barred by the respondents".
3. Learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Messrs Pfizer Laboratories Limited v. Federation of Pakistan reported as PTCL 1998 CL.
354. In the said case it was held that if one party under a mistake, whether of fact or law, pays some money to another party (which includes a Government department), which is not due by law or contract or otherwise, that must be repaid in view of section 72 of the Contract Act, 1S72. It was also held that if any tax is chargeable and payable by an importer or an exporter and due to inadvertence, error or misconstruction, excess amount is paid or recovered than what was actually due and payable, then in such circumstances claim for the refund for excess amount has to be made within six months as envisaged under section 33 of the Customs Act, but where the duty or tax charged and recovered was not payable at all, above section 33 has no application and refund can be sought even beyond six months period.
4. In the present case the appellant imported a consignment and without seeking the benefit of exemption of duty and taxes got them cleared on 6-9-2000. Then on 18-6-2002 i.e. After 21 months refund was claimed on the ground that on such date no duty was payable in view of the S.R.O. No. 27(I)/98, dated 17-1-1998. We are in total agreement with this proposition that the ratio of the Pfizer's case which is fully applicable to the present case, however, we are of the opinion that irrespective of the the consumed in filing the application for refund we have noted that Appellate Tribunal while examining the entitlement of exemption in terms of the S.R.O, has held as follows:- "They have neither produced a certificate from the Engineering Development Board, Islamabad that the imported goods duly mentioned in the Customs General Order were not being locally manufactured at the the of their import nor have produced any evidence that a minimum average of 50% of production of the Appellant's unit had been exported or the value addition of 40% had been made during the period so far expired i.e. From 6-9-2000 when the goods were cleared from Customs control...."
5. This finding of the Appellate Tribunal clearly shows that the appellant was not entitled to the exemption under the said S.R.O, and we totally agree with these findings. This finding has not been challenged in this reference. Hence while answering the first question in affirmative, second question is answered in the negative.