AYESHA A. MALIK, J. --- This common judgment decides upon the issues raised in the instant ICA alongwith connected ICAs detailed in Schedule "A", appended with the judgment, as all appeals raise common questions of law and facts.
2. The Appellant, Secretary Food Department Government of Punjab is aggrieved by. judgment dated 19.9.2017 passed by learned Single Judge in WP No 24377/2017 alongwith connected matters wherein the learned Single Judge has set aside order dated 22.3.20 issued by Director Food, Punjab and directed the present Appellant to release the rebate/security of the Respondents for export of wheat.
3. The facts of the case are that in terms of Notification dated 19.8.2016 ("Notification"), ,the Appellant pursuant to a decision of the Economic Coordination Committee of the Cabinet ("ECC") approved the export of 0.600 millions tons of wheat or equivalent quantity of wheat flour (atta) from the stocks stored at the centres of Punjab Food Department in D.G. Khan, Bahawalpur, Multan, Sahiwal, Faisalabad and Sargodha Divisions through privy parties. The export of the wheat or wheat flour was subject. to the conditions contained in the Notification from (a) to (g)(i), in terms whereof the exporter was bound to export the wheat or wheat flour within 60 days of lifting it from government godowns. The exporter also had to submit a bank guarantee alongwith the documents provided in clause (g)(i) to (vii). There is no dispute between the parties with respect to the permission granted under the Notification or to the fact that the Respondents exported the wheat or wheat flour, as the case may be, within 60 days of lifting of the same from the government godowns. The dispute between the parties pertains to the requirement of the Director Food, Punjab through order dated 22.3.2017 for a swift code to establish the actual export of the wheat or wheat flour by the Respondents and to prove that payments made outside of Pakistan came into Pakistan through proper banking channel.
4. Learned Law Officer on behalf of the Appellant argued that in order to establish and ascertain that wheat or wheat flour was actually exported and that payment was received from abroad, the requirement of a swift code was sought from all beneficiaries of the Notification. He also explained that this was done out of abundant caution to ensure that there was no misuse of the facility granted. Learned Law Officer placed reliance on clause g (vii) of the Notification to justify the demand for a swift code, as it provides for any other documents or evidence can be required in order to establish the actual export of wheat or wheat flour. Learned Law Officer argued that the demand for the swift code wasaccordance with the Notification and the learned Single Judge has erred in law by allowing the petitions without proper proof of the actual export.
5. On behalf of the respondents, it is argued that there is no such requirement under the EPD Circular No, 4 of 2013 dated 8.3.2013 ("EPD Circular"), or the State Bank letters dated 18.8.2015 and 19.8.2015 or even under Chapter 12 of the Foreign Exchange Manual, 2017. Learned counsel argued that there is no requirement to Provide a swift code in order to establish actual export particularly when the Foreign Exchange Manual, 2017 recognizes the peculiar nature of trade with Afghanistan and permits cash convertible currencies by exporters as there is no proper banking, system available in Afghanistan.
6. We have heard the learned counsel for the parties and have gone through the judgment and record and are in agreement with the findings of the learned Single Judge. A plain reading of the Notification clarifies that the following documents are required for verification in order to claim the rebate:--
(i) Copy of bill of lading/manifest whichever is applicable
(ii) Copy of export commercial invoice
(iii) Copy of Form-E
(iv) Copy of L/C for export
(v) Goods declaration duly verified by the custom authorities
(vii) Declaration to the effect that no fraud/forgery has been committed in export documents
(viii) Any other documents/evidence which may be required for establishing the actual export of wheat/wheat flour (atta).
In terms of clause (viii) any other document or evidence can be called for to establish the actual export. In this context "any other" means in relation to the documents provided in clause: (g)(i) to
(vii) and not some totally new document or requirement which was never sought for in the first place or which has no nexus with the documents called for under the Notification. We also find that in terms of the EPD Circular, it is emphasized that the. Authorized Dealers will accept cash convertible currencies brought over their counter by the exporters and convert the same at the prevailing buying rate applicable for normal export proceeds for credit to the PKR account of the exporter when trading with Afghanistan. Even as per the agreements entered into between the Appellant and the respondents, the relevant documents sought for are contained in clause 4 whereas clause 4(iv) requires that Copy of L/C for export or cash against documents (CAD) or bank to bank transactions covered under the State Bank regime. Hence, in terms of the agreements, the Appellant clearly recognizes that there can be cash payment received against the export as it is the requirement as per the Foreign Exchange Manual, 2017. Therefore any demand by the Appellant to satisfy themselves of the actual export will have to be within the requirements prescribed under the Notification, EPD circular and the agreements entered into between the parties. The Respondents argued that they exported wheat or wheat flour to Afghanistan after fulfilling all legal requirements, however, the proceeds were released in cash foreign exchange instead of through banking channel, hence the swift code is neither available nor relevant to the transaction. In this regard, we note that the clarification sought from the State Bank of Pakistan on 18.8.2015 and 19.8.2015 confirms the contentions of the Respondents as it was clarified that the State Bank instructions allow for exports proceeds realization in cash foreign exchange for export to Afghanistan. Under the circumstances, the demand raised by the Appellant Food Department for swift code is beyond its mandate in tents of the Notification, EPD circular and Foreign Exchange Manual, 2017.
7. For what has been discussed above, all the appeals are dismissed and impugned order dated 19.9.2017 passed by the learned Single Judge in WP No 24377/2017 is maintained. The Appellant is directed to release the rebate/security of the Respondents immediately.