' SHAHID KARIM, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 lays a challenge to the order dated 03.12.2010 passed by the respondents in respect of the G.D, No,LDRY-HC--3006 dated 20.09.2010. The order was for enhancement of value on the basis of Valuation Ruling No,272 dated 28.9.2010.
2. The facts in the case are simple and are easily resolved. The petitioner imported a consignment of miscellaneous items and filed the copy of the G.D. Along with the copies of invoices/ packing list and bill of lading with the respondents in terms of section 79 of the Customs Act, 1969 (Act) for the customs clearance. In short, the goods prescribed in the GDs were assessed in terms of the Valuation Ruling No,272 referred to above. The petitioner takes cavil to the assessment of the goods imported by the petitioner on the basis of the Valuation Ruling No,272. The primary ground urged by the learned counsel for the petitioner in .Seeking the non-application of the Valuation Ruling No,272 dated 28.9.2010 is that the goods were imported and reached the port on 20.09.2010 when G.D No,3006 was filed under section 79 of the Act for the purposes of assessment in terms of section 80 while the Valuation Ruling was issued on 28.9.2010 by D.G, Customs Valuation, Karachi under the powers conferred by section 25-A of the Act. In a nub, the learned counsel for the petitioner submits that the Valuation Ruling cannot be applied retrospectively in order to assess the goods of the petitioner whose G.D had been filed earlier in time. The entire reliance of the learned counsel for the petitioner in support of the proposition involved in this petition is on a judgment of the Sindh High Court reported as Sadia Jabbar v. Federation of Pakistan and others (PTCL 2014 CL 537).
3. This petition is not concerned with the broader issues on which the learned Sindh High Court dwelt upon during the course of its decision. Those issues touched upon the legislative background and the true meaning underpinning section 25 and its relation with section 25A. In particular, the true construction of the provisions of section 25A in the context of the 'scheme' and 'sequential order' contained in section 25. I shall remain within the narrow confines of the question whether a valuation ruling rendered under section 25A can be applied retrospectively to goods already imported into Pakistan? The Sindh High .Court held, upon consideration of the provisions of sections 25 and 25A, that it did riot have retrospective application and thus could only be made applicable to goods yet to be imported into Pakistan. While so holding, the learned Bench of the Sindh High Court was swa yed by the words used, in pari. Materia, in section 18 and thus to draw the conclusion that a valuation ruling could only be applied prospectively. I beg to differ.
4. In Sadia Jabbar case, the Sindh High Court contextualized its raison deter in the following passages: "...The first point to note in this regard is that the Valuation Agreement and section 25 both relate to 'imported goods'. Although this expression is not defined in either the agreement or the section, it is clear that it means and refers to goods actually imported. This is indeed, obvious and understandable. The objective both under the Valuation Agreement and section 25 .1. To find the 'customs value of imported goods', which expression is defined in both the agreement and the section in near identical terms. The Valuation Agreement defines this expression as meaning 'the value of goods for the purposes of levying and valorem duties of customs on imported goods', and section 25(13)(a) defines it as "the value of goods for the purposes of levying duties of customs and other taxes on imported goods."
15. It will be seen from the foregoing that section 25A allowed for a major departure from the Valuation Agreement/section 25. (The close manner in which section 25 follows and replicates the Valuation Agreement must always be kept in mind). By allowing a predetermination of the customs value of goods imported into Pakistan (subsection (1)), and applying this value to the relevant' imported goods (subsection(2)), the section in effect did away with the primary method mandated by the Valuation Agreement for determining the customs value, i.e,, the transaction value of such goods. However, the section sought to minimize the effect of this divergence by requiring that the customs value under subsection (1) be determined "after following the scheme and sequential order as laid down under section 25". Thus, although section 25A knocked out the primary method of determining the customs value, it did not sweep away section 25/the Valuation Agreement in its entirety. It carefully sought to keep the determination of customs value under it aligned with the Valuation Agreement by requiring that the remaining methods of the agreement be followed and applied in the same manner as laid down therein...."
"21. Two further points must be made. Firstly, it is clear that the section 25A cannot have retrospective effect, i.e,, a valuation ruling cannot be issued in relation to goods actually imported, nor can it be applied to imported goods unless it was issued before such importation. As noted above, what section 25A enables is a predetermination of the customs value. Such a determination can only apply in relation to goods not actually imported at the time that the determination is issued. If there is no valuation ruling when the goods are actually imported, it is only section 25 which is applicable. "
5. The primary reason which weighed with the Sindh High Court was the similarity in language of section 18 and section 25A. So far as relevant, these read as follows: "18. Goods dutiable.---(1) Except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on,-
(a) goods imported into Pakistan;
(b) goods brought from any foreign country to any customs station, and without payment of duty there, transshipped or transported for, or thence carried to, and imported at any other customs station; and
(c) goods brought in bond from one customs station to another.
25A. Powers to determine the customs value.---(I) Notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation on his own motion or on a reference made to him by any person or an officer of Customs, may determine the customs value of any goods or category of goods imported into or exported out of Pakistan after following the methods laid down in section 25, whichever is applicable.
(2) The customs value determined under subsection (1) shall be the applicable customs value for assessm ent of the relevant imported or exported goods.
(3) In case of any conflict in the customs value determined under subsection (I), the Director General of Customs Valuation shall determine the applicable customs value.
(4) The customs value determined under subsection (1) or , as the case may be, under subsection (3), shall be applicable until and unless revised or rescinded by the competent authority. "
6. Although the words used in both the provisions are 'goods imported into Pakistan', there is no reasonable basis to hold that they carry the same connotation in the two provisions that they are used. Although the learned Bencla in Sadia Jabbar case has invoked to its aid the principle that 'words or expression used in the same statute in different sections should be given the same meaning unless the context otherwise requires', that rule is not without exceptions and does admit to deviations in appropriate cases. In the first instance there is no plausible reason to restrict the meaning of the words 'goods imported into Pakistan', by judicial construction, to merely goods which are yet to be imported. The Sindh High Court, too, had to add the words 'to be' to the expression in order to lend actuality to its analysis. This, in my opinion, is legislating by judicial overreaching and not interpreting a provision of law. As Justice John Marshall Harlan warned, an invitation to judicial lawmaking results inevitably in 'a lessening, on the one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the bloodstream of our system of government.' (John M. Marshall, The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan 291 (1969). This can also be elaborated by the 'Omitted-Case Canon' of interpretation which states that 'nothing is to be added to what the context states or reasonably implies. That is, a matter not covered is to be treated as not covered'. (Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner). 'Whatever temptations the statesman of policymaking might wisely suggest, construction must eschew interpolation and evisceration. The judge must not read in by way of creation.' (Felix Frankfurter, Some reflections on the Reading of Statutes). To my mind, the words goods imported into Pakistan will, in a given context, have the same meaning as the term 'imported goods' used in section 25 and can be used synonymously. There is no reason to put a different meaning on the two terms. Both the terms refer to goods which stand imported and the difference merely lies in the manner of expression and no more For if the meaning to the term, 'goods imported into Pakistan' has to be given a meaning so as to relate to goods yet to be imported into Pakistan, by insertion of the syntax `to be', on the same analogy, the term could be lent a different meaning by importing the word 'already' into the term so as to read thus: 'goods already imported into Pakistan'.
7. It would be a fallacy to say that section 18 applies to 'goods to be imported into Pakistan', and not to goods already imported. This runs counter to the very concept of section 18. That provision relates to levy of customs duties, and the levy of customs duties can only be made on goods which. Actually stand imported. Certainly, by subsection (1) of section 18, the rates at which the customs duties levied shall be prescribed in the First Schedule but that is only in relation to prescribing rates. This does not detract from the fact that the levy of customs duties shall be on goods which have been imported or imported goods. That the two terms are synonymous can be gleaned from a perusal of subsection (5) of section 18. It reads thus: "S.18(5) The Federal Government may, by notification in the official Gazette, levy an additional customs-duty on such imported goods as are specified in the First Schedule, at a rate not exceeding thirty-five per cent of value of such goods as determined under section 25 or, as the case may be, section 25A.
' Provided that the cumulative incidence of customs-duties leviable under subsections (I), (3) and
(5) shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements. "
8. The term used by the legislature is 'imported goods'. This puts paid to the argument that section 18 only employs the term 'goods imported into Pakistan'. It follows inevitably that the legislature has used the terms interchangeably.
9. Another aspect which will exercise a gravitational pull on the interpretation of section 25A is the fact that section 25A not only applies to the 'goods imported into Pakistan' but also to 'goods exported out of Pakistan'. Thus the customs value of any goods exported out of Pakistan, too, is contemplated by section 25A and so also by section 18. And by section 131, no goods shall be loaded for exportation until the owners of any goods to be exported has assessed and paid his liability of duty, taxes and other charges. It is clear that in the case of exportation at least, the stage for a valuation ruling will necessarily arise prior to exportation. This would mean that a doubt as to the value of exported 'goods may raise at the time of exportation and a valuation ruling will be required to be rendered. If the term 'exported goods' as used in section 25(A) was taken to mean goods which have undergone exportation, .Then section 131 would be rendered ineffective and redundant. Thus the intention of the legislature is clearly to trigger the tool of valuation ruling at the pre-import as well as post-import stages and no distinction can be drawn with regard thereto.
10. While interpreting section 25A vis a vis section 18 and section 25, the setting of the provision is an important consideration: Sections 25 and 25A relate to determination while section 18 is concerned with the levy of customs duty. Section 25A is an exception to section 25 and this much is accepted in Sadia Jabbar case, too. As an exception to section 25, it must apply to the same set of events as section 25. The events in section 25 deal with the determination of value of imported goods. That is, goods which have already been imported and await clearance for home consumption or to be cleared from a warehouse. The purpose of the legislature in enacting sections 25 and 25A is the determination of the customs value of goods. These provisions have to be read together as dealing with the same set of circumstances. Section 25A reconfigured the sequential order of value determination contemplated in section 25. That purpose can neither be nullified nor belittled by putting a nuanced meaning on the words 'goods imported 'into Pakistan' in contradistinction to the words 'imported goods'. Sections 25 and 25A will have to be read in conjunction with each other.
The purpose underlying section 25A and the intention of the legislature in enacting it will have to be kept in view. Valuation ruling will only have to be resorted to when doubt arises with regard to determination of value of any goods. In most cases, that doubt will arise after the goods have been imported and are awaiting clearance. If it were held that section 25A does not apply, to goods already imported then that will have the effect of ouster of jurisdiction under section 25A which runs counter IE to the intention of legislature.
11. The origin and purpose of section 25A can be traced to Uruguay round (in respect of General Agreement of Tariffs and Trade (GATT) and the Customs Valuations to be made. This has been referred to in Understanding International Business and Financial Transactions by Jerold A.
Friedland in the following words: "Most tariffs are ad valorem, meaning that the tariff is imposed upon the value of an imported product. Thus, the real importation costs depends upon the method customs officials use to determine-that value as well as upon the actual tariff rate. An unfair system that does not conform to commercial reality or which uses arbitrary or fictitious customs values poses a significant barrier to fair trade.
' The GATT provides harmonized rules for determining tariff valuations. The harmonized system provides an international nomenclature developed by the World Customs Organization, that uses six digit codes for all participating countries to classify trade goods in a common manner. One set of rules applies in determining how a particular item must be classified by a F nation's customs officials in deciding the tariff rate that will be applied. Generally, W7'0 members must use the rules set forth in the Harmonized Commodity Description and Coding system (IIS). The HS is a detailed nomenclature system used in international trade to impose tariffs on goods and for describing them in transport documents. The U.S. Has adopted the Harmonized Tariff Schedule of the United States (HTS), which is based upon the HS. The GATT also establishes a harmonized methodology for determining the value of an item for tariff purposes.
' A ministerial decision reached in the Uruguay round allows customs officials to request additional information if they have reason to doubt that the declared value of imported goods is accurate. If the additional information does not eliminate that reasonable doubt, the customs value of the imported goods is not determined from the declared value. "
12. The significance of the words 'after following the scheme and sequential order as laid down under section 25' used in section 25A(1) cannot be discounted or lost sight of. These words lend credence to the notion that the valuation ruling, too, is to be handed down in respect of imported goods tor goods exported out of Pakistan) and there is no reason to bifurcate the subsection (1) in order to apply it to two situations.
13. The Latin phrase noscitur a socials means 'it is known by its associates'. The terms 'goods imported into and 'imported goods' are birds of the same feather .And must flock together. The phrase has been dilated upon in Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner, in the following words: ' The associated-words canon could refer to the basic principle that words are given meaning by their context and some authorities use this canon at that broad level of generality. But we mean something more specific. When several nouns or verbs or adjectives or adverbs---any words-- are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar. The canon especially holds that "words grouped in a list should be given related meanings."
14. In view of the above, the instant petition is dismissed. As a result, the Valuation Ruling No,272 dated 28.09.2010 shall apply to the goods imported by the petitioner.