MR. JUSTICE MUHAMMAD JUNAID GHAFFAR.-- (1). Through this common judgment we intend to dispose of the above mentioned petitions which involve a common question of law i.e. As to whether the petitioners are entitled for the release of the imported vehicles as covered by the instant petitions, as has been allowed to several other similarly placed persons by the respondent No. 1 vide its release instructions dated 12.7.2013, 19.8.2013 and 30.8.2013.
2. Briefly the facts germane for the disposal the instant petitions are that the petitioners who are Non-resident Pakistanis have brought vehicles under the personal baggage/transfer of residence and the gift scheme as notified by the Federal Government under its Import Policy Order from time to time. It is the case of the petitioners, that when they bought/purchased the vehicles in their country of residence, the condition as contemplated in the relevant Import Policy Order was, that only such vehicles could be brought to Pakistan which were not older than 5 years under the said scheme. It is further stated that the respondent No. 1 vide SRO 1441(I)/2012 dated 12.12.2012 carried out an amendment in the said Import Policy Order and the age limit of 5 years was reduced to 3 years. It is the case of the petitioners that they had already bought/purchased the vehicles which were of more than 3 years age and were left with no other choice but to execuie shipments of the said vehicles to Pakistan which have since arrived and are lying at the Port. It is further stated that due to this amendment carried out vide SRO dated 12.12.2012 the respondent No. 3 has withheld the clearance of the said vehicles and has demanded to bring permission/NOC from the respondent No. 1 as issued in the case of other persons. The petitioners thereafter have also approached the respondent No. 1 through their duly constituted attorney vide letter dated 1.7.2013 followed by another letter dated 23.9.2013 as annexed with the comments filed by the respondent No. 1, but according to them till date no permission and/or release instructions have been issued by the respondent No. 1, therefore the instant petitions have been filed seeking directions for the release of the vehicles.
3. Mr. Salman Hamid learned counsel for the petitioners has contended that the petitioners had purchased the said vehicles before the issuance of Notification dated 12.12.2012 and therefore the said amendment does not apply to the case of the petitioners. Per learned counsel, at the time of purchase of the vehicles in Japan an export certificate is issued by the relevant authority and once such certificate is issued, the said vehicles are liable to be exported from Japan and cannot be used or plied on the roads in Japan. Learned counsel further contended that the respondent No. 1 is acting in a discriminatory manner with the petitioners, as they have allowed one time permission to various other similarly placed persons in identical situation and hence this amounts to violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel further submitted that in view of para 19 of the Import Policy Order, 2013 the respondent No. 1 has exercised its discretion by relaxing the age limits of the vehicles in respect of various other persons, but has refused to exercise the same in favour of the petitioners without assigning any justifiable and logical reason. Finally the learned counsel contended that the petitioners seek the same relief as has been granted to various other similarly placed persons.
4. Mr. Syed Mohsin Imam Wasti learned DAG appearing on behalf of the respondent No. 1 has filed its comments and contended that the petitioners have shipped their vehicles after the issuance of amending Notification dated 12.12.2012, therefore the principle of "Ignorantia juris non excusat" that ignorance of law is no excuse would be applicable on the petitioners. The learned DAG contended that the imports made by the petitioners in the instant petitions is of commercial nature and therefore the respondent No. 1 has refused to grant them NOC/permission. In support the learned DAG relied on the applications filed on behalf of the petitioners and contended that those were made by a single person on their behalf and therefore the nature of import is commercial. The learned DAG further contended that the authority and power as vested in the respondent No. 1 vide para 19 of the Import Policy Order, has always been exercised by considering the peculiar circumstances in each individual case and therefore the contention made on behalf of the petitioners to accord them the same treatment as has been given to others is misconceived.
5. We have heard the learned counsel and the learned DAG and have perused the record. Since a short point is involved, by consent the petitions were taken up for final disposal at Katcha pehsi stage.
6. It appears that the Federal Government under the Import Policy Order has initiated scheme for import of vehicles under the personal baggage/transfer of residence and gift scheme since long and presently the same is in field through Para 15 of the Import Policy Order, 2013 as notified vide SRO 193(1)/2013 dated 8.3.2013 and is available at appendix "E" to the said policy order. The idea behind this scheme besides allowing an incentive to the Non-resident Pakistanis for the import of vehicles into Pakistan in used condition, which is otherwise not permissible to resident Pakistanis, is to save precious foreign exchange as these vehicles are bought by the Non-resident Pakistanis from their earnings abroad. It is also an admitted position that prior to the year 2010 the age limit for cars being imported by such Non-resident D Pakistanis under the said scheme was 3 years.
However by virtue of SRO 1113(1)/2010 dated 8.12.2010 an amendment was carried out in the Import Policy Order, 2009 whereby paragraph 3 of appendix "E" was amended and a proviso was added in the following manner:-- "Provided further that the cars not older than five years shall be importable under the personal baggage, gift and transfer of residence schemes. This provision shall be applicable from the 8th December, 2010."
7. Subsequently, through another SRO dated 12.12.2012 the age limit of five years has been reduced to three years once again. It is the case of the petitioners, that when they bought their vehicles in Japan, the age limit was five years and accordingly they had a vested right for the import of the said vehicles as they were not in a position to resell these cars again in Japan once they have purchased them and were issued export certificates by the relevant authorities in Japan. In view of this position they were compelled to execute shipments of these vehicles which were accordingly shipped by them. It is in this context that the present controversy is before us that as to whether the discretion vested with the respondent No. 1 under para 19 of the Import Policy Order, 2013 has been exercised in a fair and reasonable manner as required under the law by refusing to issue the NOC/one time permission for the release of the said vehicles to the petitioners and whether such refusal would amount to discriminatory treatment in violation of Article 25 of the Constitution of Islamic Republic of Pakistan. To resolve this controversy it would be advantageous to reproduce para 19 of the Import Policy Order, 2013 which is as under:-- "19. Contravention of the Act.--Any import that do not comply with the requirements of this Orders, or are made on the basis of any false or incorrect particulars, shall be deemed to have been made in contravention of the Act: Provided that the Federal Government may condone such contravention upon payment of surcharge or on such conditions as it may prescribe; Provided further that all goods of banned list imported in commercial quantity shall not be released in any circumstances. Such goods shall be re-exported at importers or shipping lines costs; Provided also that goods on restricted list which are of substandard quality affecting public health including short shelf life medicines or pharmaceutical raw materials or edible products imported in contravention of this Order shall be destroyed within a period of six months without offering any release."
8. From the perusal of the above provision it transpires that the case of the petitioners has to be dealt with under the first proviso as reproduced above. We have also gone through minutely, the release instructions dated 12.7.2013, 19.8.2013 and 30.8.2013 issued by the respondent No. 1 and placed on record by the petitioners and have noticed that the respondent No. 1 has exercised the said discretion in respect of other importers in the following manner:-- "Islamabad, the 12th July, 2013.
"2. The request of Mr. Sabzal Khada Baksh has been examined in this Ministry and it has been decided to allow one time permission to import the aforementioned one unit used Toyota Premio Car in relaxation of the provision of the Import Policy under para 19 of the Import Policy Order, 2013.
3. The Collector Customs, MCC (Appraisement) is therefore, requested to allow release of the one unit used Toyota Premio Car Chassis No. ZRT260-3036183 on one time basis subject to payment of leviable duty/taxes and completion of other codal formalities. Islamabad, the 19th August, 2013 The request of Mr. Muhammad Zeb has been examined in this Ministry and it has been decided to allow one time permission to import the aforementioned one unit used Mercedes C-200 Car after payment of 2% surcharge on C&F value in addition to the leviable duty/taxes and other charges, in relaxation of the provision of the Import Policy under para 19 of the Import Policy Order, 2013.
3. The Collector Customs, MCC (Appraisement) is therefore, requested to allow release of the one unit used Mercedes C-200 Car Chassis No. WDD-2040412 -A057759 on one time basis subject to payment of surcharge of 2% of the C&F value, leviable duty/taxes and completion of other codal formalities.
Islamabad, the 30th August, 2013.
1. In continuation of this office authorization of even number dated 26th July 2013 on the subject mentioned above. The applicant Mr. Ghulam Qadi has again approached the Ministry for clarification regarding surcharge on release of Mercedes Car Chassis No. WDD2040412-A083496 allowed one time permission in relaxation of the Import Policy Order.
2. The Collector Customs, MCC (Appraisement) Karachi is requested to release the subject car after payment of surcharge @ 2% of the C&F value in addition to the leviable duty/taxes and completion of other codal formalities."
9. From the perusal of the above release instructions, it transpires that the respondent No. 1 has not given any cogent reasons and the very special circumstances on the basis of which the discretion as vested under para 19 of the Import Policy Order, 2013 has been exercised. We have asked the learned DAG as well as the Section Officer present in court on behalf of the respondent No. 1 as to what prevailed upon them to allow release of the vehicles to one person and refuse it to another.
The only reply submitted was, that since the case of the petitioners is commercial in nature, therefore they have been refused such release instructions. It was further asked from them that as to whether the term commercial importer has been defined in the said scheme for the Non- resident Pakistanis under the Import Policy Order, to which the answer was in the negative. We are afraid that such contention raised on behalf of the respondent No. 1 is not correct; as merely a letter/request made on behalf of an authorized person/ attorney seeking the release instructions/NOC cannot change the status or complexion of the category of the Import, for the simple reason, that firstly the law does not categorize them as such, and secondly it is an admitted position that the petitioners in the instant petitions are Non-resident Pakistanis and are therefore not always H and readily available in the country, and after bringing their vehicles they are no more required to be present and pursue the release of the same in person. The law provides them to appoint an attorney, agent, advocate or any other person to act on their behalf. I All these petitioners have brought these vehicles in their individual names and have also filed separate petitions in which copies of their import documents as well as Passports and other papers are available and therefore we are of the view that this cannot be as a commercial import hence the objection raised on behalf of the respondent No. 1 is misconceived and is hereby repelled. In our view such treatment meted out to the petitioners by the respondent No. 1 by refusing to respond to their request for grant of NOC/permission in a similar manner as has been granted/issued in favor of others, tantamount to discrimination and is therefore in violation of Articles 4 and 25 of the Constitution of Pakistan. It is not the case of the respondent No. 1 that the petitioners are not similarly placed persons, except for the reasons as discussed above, which we have already rejected, as in our view this is a case of sheer discrimination and exercise of discretion in a non- transparent manner by allowing the release instructions in favour of other similarly placed persons and refusal to exercise the same in favor of the present petitioners. It is now a settled proposition that as and when discretion is conferred upon any executive, its exercise requires vigilant circumspection and care as concession of such a wide discretion also imposes a very heavy responsibility on the person exercising such discretion. We are afraid that in the instant case the same has not been exercised in a careful manner and rather the same has been exercised in a M slipshod manner which cannot be approved by us.
10. It may not be out of place to mention that there is a plethora of case law on the issue of discrimination being in violation of Article 25 of the Constitution of Pakistan and it would be advantageous to refer to the case of M/s Nizamuddin Faridul Haq vs. The Collector of Customs, (Appraisement), Karachi and 2 Others (PLD 1994 Karachi 480). In this case discriminatory and iniquitous treatment was meted out to some of the importers of "lawn movers" who were charged with regulatory duty between some specified dates, whereas the other set of importers got their goods released during exactly those dates without paying the said duty. On challenge by those petitioners who were charged with the regulatory duty in that period this Court speaking through Mr. Wajihuddin Ahmed. J, held as follows; "It is obvious that, on the basis of the sweeping indulgence extended by the Board on 15.4.1992, those who had already got their goods cleared either for home consumption or on ex-bond basis were benefited and, in fact, could and may have claimed refunds. In this situation, would it not have been enough for the Board to render its ruling and leave the implications to be taken care of by law? If that was done, those who had cleared their goods upon payment of regulatory duty, without objection, may have had obvious difficulties in retracing their steps by claiming refunds.
The current state of the CBR opinion accords benefits to all such interests and, manifestly, the petitioners, who were agitating their rights and in ostensible anticipation had in-bonded the disputed goods have suffered. This clearly is a case of discrimination and inequities treatment attracting the Constitutional guarantees, inter alia, enshrined in Articles 4 and 25 of the Constitution of Pakistan, enjoying protection of law, treatment in accordance with law and equality before law. On this ground alone the petitioners are entitled to relief. "
11. Similarly the Hon'ble Supreme Court in the case of I. A. Sherwani Vs. Government of Pakistan reported in 1991 SCMR 1041 has settled the following principle of law with regard to discrimination and equal protection under the law.
(1) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness p f a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25:--
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
From the perusal of the above observations of the Hon'ble Supreme Court we are of the view that in the instant matter the case of the respondent No. 1 is not even of any differentiation of class or intelligible differentia and the case of the present petitioners is clearly covered by these principles, specially as mentioned at (vi) above and hence they are entitled for the benefit granted to others in respect of the same issue.
12. In view of above observations, we had allowed the instant petitions vide our short order dated 21.1.2014 and had directed the respondent No. 1 to issue release orders to the present petitioners as has been done in the cases of other persons vide their letters dated 12.7.2013, 19.8.2013 and 30.8.2013 and had also directed the respondent No. 3 to issue delay and detention certificate in favour of the petitioners under Section 14 of the Customs Act, 1969. The above are the reasons in support of the short order.