' MRS. IRSHAD QAISER, J.---By this single judgment, we propose to dispose. Of Custom References Nos. 22, 23 and 24 of 2006, as in all these references common questions of law regarding imposition of regulatory duty at the rate of 15%, ad volerum vide S.R.O. 18(1)/2005 dated 3-1-2005 with retrospective effect from 17-12-2004 on wheat flour exported are involved therein.
2. These references have been filed under section 196 of the Customs Act, 1969 against an order passed by the Customs Federal Excise and Sales Tax Appellate Tribunal Peshawar Bench on 9-8- 2006 in appeal .Bearing No,113/PB/2006 and formulated the following two questions of law:-- "(1) Whether under the facts and circumstances of the case, para. No,2 of S.R.O. 18(I)/2005 dated 3- 5-2005 per se is not ultra vires thus void and without legal effect?
(2) Whether under the facts and circumstances S.R.O. 18(1)/2005 dated 3-1-2005 is inapplicable to the applicants' 'consignments of wheat flour exported on 17 and 18 December 2005 and its retrospective application to such a closed and passed transaction may not come within mischief of rule of CONFISCATORY TAXATION?
3. Brief facts of the case are that during the course of examination of the record of the Customs Station Ghulam Khan, by the staff of Intelligence and Investigation of Customs Excise and Sales Tax, Peshawar, it was found that Messrs Taj Wazir Enterprises etc., petitioners in Custom Reference No,22 of 2006, Messrs Dawar Enterprises etc. Through attorney Ahmad Nawaz, petitioners in Custom Reference No,23 of 2006 and Messrs Shafiuillah Enterprises etc., petitioners in Custom Reference No,24 of 2006, exported wheat flour vide Shipping Bills Nos.8893, 8908 dated 17-12-2004, without payment of regularity duty at the rate of 15% advoleram imposed, vide S.R.O. 18(1)/2005 dated 3-1- 2005 amounting to Rs,1,06,500. They were accordingly alleged to have violated the provisions of sections 18, 32, 80 and 131 of the Customs Act, 1969 read with S.R.O. 18(1)/2005 dated 3-1-2005. They were accordingly served with a show cause notice and after hearing them, the learned Deputy Collector, Customs (Adjudication), Peshawar, directed them to deposit the unpaid Government dues amounting to Rs,1,06,500 in addition to deposit of Rs,25000 as redemption fine in terms of section 156(14)(43). Dissatisfied with the said order, they filed appeal before the Collector of the Customs Sales Tax and Central Excise (Appeals), Peshawar, who also upheld the order of the Adjudicating Officer except with modification to the extent of waiver of redemption of Rs,25000.
Discontent with the order of the Collector (Appeals), the petitioners filed appeal before the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar Bench, assailing the retrospective imposition of regulatory duty and prayed for setting aside the demand raised. The learned Appellate Tribunal while concurred with the finding of the lower forums, too, dismissed the appeal, vide order dated 31-7-2006, hence these references.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. It is contended by the learned counsel for the petitioners that the export took place on 17-12-2004 and 18-12-2004 whereas the regulatory duty on wheat flour was imposed under Notification 18(I)/2005 dated 3-1-2005. That the impugned notification was not in existence on 17-12-2004 and 18-12-2004, when the consignments of wheat flour were declared for and exported to Afghanistan.
Thus this notification is detrimental and prejudicial to the interest of the petitioners and cannot be held retrospectively, as the same would impair the vested rights, which the tax payer had acquired in accordance with the provisions in force at the time notification had come into effect; that this notification cannot be effective, as it is settled law that notification curtailing or extending rights of citizen will take effect from the date of its publication in Official Gazette and not from any prior date. In support of his arguments, the learned counsel relied on 2012 SCM R 619, PTCL 1999 CL 473, 1973 PTD 361, 2004 PTD 2267, PLD 1997 SC 582, 1992 SCMR 165 and 2005 PTD (Trio.) 1305.
6. These arguments were rebutted by the learned counsel for the respondents and supported the concurrent findings handed down by the forums below. He further argued that competent authority has passed the order in accordance with law.
7. By formulating two questions noted above, the petitioners have based their case on a single legal point to the effect that Para No,2 of S.R.O. 18(1)/2005 is void ab-initio, without legal effect, and is inapplicable to the petitioners' consignments of wheat flour exported on 17-12-2004 and 18-12- 2004 and it comes within the mischief of Rule of confiscatory taxation.
8. In order to settle the dispute, it is necessary to go through the relevant provisions of law. Vide S.R.O. 18(1)/2005 dated 3-1-2005, regulatory duty at the rate of 15% advoleram have been levelled on export of wheat flour to neighboring countries and vide para-2 of the S.R.O., it is clearly mentioned "this notification shall take effect from 17-12-2004". Under section 18(3) and section 18(4), the regulatory duty is leviable. The relevant portion of the provisions is reproduced below:-- "18(3) The Federal Government may, by notification in the official Gazette, levy subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the goods to be imported or exported, as specified in the First Schedule at a rate not exceeding one hundred percent of the value of such goods as determined under section 25."
"18(4) The regulatory duty levied under subsection (2) shall,--
(a) be in addition to any duty imposed under subsection (1) or under any other law for the time being in force; and
(b) be leviable on and from the days specified in the notification issued under that subsection, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day."
9. From the bare reading of these provisions of law and specifically section 18(4)(b), it became crystal clear that the regulatory duty is leviable on and from the day specified in the notification notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day.
10. The provisions of law allow the Customs Department to recover regulatory duty from the date, which has been specified in the notification. In the impugned notification specific date has been mentioned and it is applicable to all the exporters on wheat flour exported to the neighboring countries and it does not cause any prejudice to any particular person including the present petitioners. It is a general notification. In this respect reference is made to PTCL 1999 CL 473, wherein the august Supreme Court of Pakistan, has accepted the principle that regulatory duty is livable from the dates specified in the notification. Reference is also made to PLJ 1997 SC 107(sic), PLD 2001 SC 340 and 2005 PTD (Trib.) 1305, wherein it is held that notification which is detrimental or prejudicial to the interest of a person cannot operate retrospectively. As stated above the impugned notification was not detrimental and prejudicial to the interest of particular person, therefore, the petitioners have not been able to point out any illegality. Considering in the light of the above provisions of Customs Act, we while concurred with the finding of Customs authority and Tribunal, hold that demand raised by the Customs Department is legal and enforceable in the eye of law. No maladministration or mala lide has been found, therein. It cannot come within the purview of confiscatory taxation. The appellate Tribunal as well as Customs authority have recorded concurrent finding on the question of fact and law wherein the comprehensive reply of the questions formulated by the petitioners in the References have been given which are not susceptible to be interfered with by this Court. We do not think, Customs Authority as well as the lower forums has done anything against law. The treatment given by the Customs Federal Excise and Sales Tax Appellate Tribunal, Peshawar, to the questions raised before it in the matter being proper and in accordance with law is not open to any interference. There is also nothing in the impugned judgment of the Appellate Tribunal as could show that the interpretation placed on the S.R.O. By the Tribunal is in derogation of any of the prevailing law. Therefore, no question much less of law, in our view, has arisen in any of these References as would call for its answer by this Court under section 196 of the Act. We, therefore, have no other option but to answer the questions raised in these references in negative, especially when neither the learned counsel for the petitioners could point out any distinguishing feature nor could he advance any reason much less convincing to justify different answers of the questions above.
11. For what has been discussed above, references being without substance are dismissed.