' MIAN FASIH UL MULK, J.---Messrs P.M International, 3/B Railway Road, Peshawar (petitioners in Writ Petition No,949 of 2005) and Messrs Ghazi Traders, Jumma Khan Plaza, Peshawar (petitioners in Writ Petition No,947 of 2005), are aggrieved of the impugned orders dated 20-6-2005 of the Member (Customs) Central Board of Revenue, Islamabad, whereby their representations for exemption from regulatory duties under sections 19 and 20 of the Customs Act, 1969 have been regretted. As common questions of facts and law are involved in both the writ petitions, therefore, the same shall stand disposed of through this common judgment in Writ Petition No,949 of 2005.
2. Brief facts of the case are that the Federal Government under section 18(2) of the Customs Act, 1969 (hereinafter to be referred as 'the Act') imposed regulatory duty on imported goods/items vide S.R.O. No,1050(I)/95 dated 29-10-1995, which were exempted either partially or wholly from payment of customs duty leviable under section 18(1) of the Act and withdrew exemptions from payment of customs duty and sales tax on the imports of some of the items. Various industrial concerns questioned the imposition of such duty in a number of constitutional petitions filed Before the High Courts of Lahore, Sindh, Balochistan as well as this Court including the petitioners. This Court declared I e imposition of regulatory duty as ineffective on the ground that regulatory duty being a kind of customs duty would be covered by the exemption notification issued by the.
Government under section 19 of the Act. Such a view was also taken by the High Courts of Sindh and Lahore but the Balochistan High Court took a different view by concluding that regulatory duty imposed by the Government under section 18(2) of the Act though a pieces of customs duty is different from the customs duty levied under section 18(1) of the Act as the object of imposing regulatory duty is different and distinct from the duty levied under section 18(1) of the Act. The aggrieved parties filed appeals before the august Supreme Court of Pakistan, which were decided through a common judgment in the case of Collector of Customs v. Ravi Spinning Mills Limited (1999 SCMR 412) and the appeals filed against the judgment of this Court were dismissed. It was held that in respect of the goods covered by S.R.O. No,108(I)/95 dated 12-2-1995, the regulatory duty imposed by S.R.O. No,1050(I)/95, dated 29-10-1995, was not recoverable. The Apex Court thus decided all the appeals in the terms that chargeability of duty under the Act is to be determined with reference to the date of filing of Bill of Entry or ex-bonding of the goods from the bonded warehouse.
3. In the light of above decision of the august Supreme Court of Pakistan, the Department issued notices for the recovery of regulatory duty from the importers. The importers including petitioners again challenged the notices in this Court and the matter was decided through a consolidated judgment in Writ Petition No,1142 of 2001. It was held that notwithstanding the principle laid down in the case of Messrs Ravi Spinning Mills, the appeal filed by Collector of Customs against the judgment of this Court in Messrs Saif Textile Mills Limited has been dismissed; therefore, demand for payment of regulatory duty could not be made. The judgment of this Court was again challenged before the Apex Court which was decided with consent of the learned counsel for the parties in the agreed terms that regulatory duty would be according to the date of filing of Bill of Entry for consumption or on the date of ex-bonding of the goods from the bonded warehouse. The Department again issued notices for payment of regulatory duty to the concerned importers including petitioners, which were again challenged before this Court through various writ petitions.
This time, the only grievance of petitioners was that they should be associated in the process of calculation of Regulatory Duty as per direction of the Supreme Court. Accordingly, while delivering judgment in Writ Petition No,1092 of 2004 on 30-11-2004, the Department was directed to provide an opportunity of hearing to the petitioners by associating them in the process of calculation of Regulatory Duty. The needful was accordingly done. Petitioners were associated in calculation of regulatory duty and as a result petitioners agreed to pay regulatory duty amounting to Rs,2,819,113 and Rs,3,244,568 respectively.
4. Petitioners instead to comply with the consent orders passed on 29-1-2005 by the Department, yet started another round of litigation by filing writ petitions before this Court taking therein the plea that they could not file Bill of Entry up to the date- of- issuance of S.R.O. No,1050(I)/95 for the reason that despite being desirous of filing the same before 29-10-1995, they could not do so as Messrs Cotechna delayed the issuing of CRF which was a condition imposed vide said S.R.O. They therefore claimed their entitlement to have benefit under sections 19 and 20 of the Act. This Court, however, found that petitioners had already opted to avail legal remedy under section 20 of the Act; therefore, respondents were directed to dispose of their representations within 10 days.
5. Through the impugned orders, Member (Customs) Central Board of Revenue has regretted the representations of petitioners on the grounds that petitioners could have filed bills of entry before the issuance of S.R.O. No,1050(I)/95 and could have also applied for provisional assessment of duties under the provisions of, section 81 of the Customs Act, 1969, which they failed to do, therefore, they are hit by the judgment of the Supreme Court of Pakistan in the case of Ravi Spinning Mills and are liable to pay the regulatory duty as determined by the collectorate of Customs, Peshawar in consent Orders Nos.925 and 926 dated 29-1-2005 issued on 2-2-2005 by the Assistant Collector (Recovery).
6. We have heard arguments of the learned counsel for the parties and have also perused the record.
7. The stance of petitioners is that they were bound to have observed the conditionality imposed vide S.R.O. No,1108(I)/94 as CRF had to be accompanied with the Bills of Entry in all circumstances and the Customs Officers were expressly and absolutely barred from receiving any Bills of Entry without CRF and in this contest the provisions of section 81 of the Customs Act, 1969 were also not applicable, which deals with the situations arising after the filing of Bill of Entry.
8. For the sake of convenience, we may reproduce the provisions of section 20 of the Act, which run as under:- "20. Board's power to grant exemption from duty in exceptional circumstances.---Under circumstances of exceptional nature, the Board may subject to such conditions, limitations or restrictions; if any, as it thinks fit to impose by a special order in each ,case recording such circumstances, exempt any goods from payment of the whole or ,any part of the customs-duties chargeable thereon and may remit fine, penalty, charge or ,any other amount recoverable under this Act.
Section 18 of the Act deals with dutiable goods, which corresponds to section 20 of the Sea Customs Act. It is a basic rule in a democratic form of Government that no tax can be levied or collected except under the authority of law. This rule has been embodied in Article 77 of the Constitution of the Islamic Republic of Pakistan, 1973. The Act of Parliament also includes an Ordinance promulgated by the President. Undoubtedly the Customs Act is a taxing statute. Its charging provisions as contained in section 18 are to be construed in favour of the subject whereas the exemption provisions as contained in sections 19 and 20 of the Act are to be construed in favour of the Government. The assessee has to prove his title for the exemption.
9. A tax or a duty can only be imposed under the authority of an Act of Parliament. This being essentially a legislative power cannot be delegated to a subordinate authority empowering it to levy a tax or duty. There is, however, no objection in delegating a power to a subordinate authority for allowing exemption. There is much difference in taxability or liability and its payability. The taxability is created by legislature while payability follows to be enforced by the executive authority.
The exemption concerns not the liability but only the payability as per dictum laid down by the Lahore High Court in PLD 1978 Lahore 468. The mere grant of exemption under Section 19 does not have the effect of modifying or altering the levy of duty under section 18 which continues to be in force. But the only legal effect is that the liability for the payment of duty that accrues under section 18 on the importation of dutiable goods is wiped off to the extent exempted. The two sections, therefore, clearly operate independently and the exercise of power under section 19 is distinct in character and scope, so that it cannot have the effect of nullifying the statutory provisions contained in section 18 whereby the charge is created by the statute itself; 1986 SCMR 1917. Issuance of S.R.O. 1050(1)195 under section 18(2) means implied withdrawal of concession of exemption granted under section 19 vide Notification No, S.R.O. 490(1)/95; 1997 CLC 106. It is also held in 1997 CLC 106 that issuance of S.R.O. 1050(1)/95 and imposition of 10% regulatory duty is not unreasonable.
' 9(sic) In the circumstances, we find ourselves in agreement with the conclusion of Central Board of Revenue that when petitioners could have filed their Bills of Entry before the issuance of S.R.O.
No,1050(I)/95 under Section 79 of the Act and when they could also have applied for provision J assessm ent of ,duties under the provisions of section 81 of the Act, to which resort had already been made by other concerns and also when they had the opportunity to raise such a question in the earlier round of litigation, the petitioners' silence and failure to file the Bills of Entry before issuance of S.R.O. No,1050(I)/95 would make them disentitle to the concession prayed for and the judgment of the august Supreme Court of Pakistan is to be complied with by the petitioners after they have already availed opportunity of associating themselves with the process of calculation and consequent concurrence to pay the same. The representations of petitioners have, therefore, been rightly dismissed by the respondent/Member (Customs). Central Board of Revenue.
10. For the aforesaid reasons, these writ petitions are dismissed with orders to costs.