Through instant petition, the petitioner has expressed his grievance against non-release of a vehicle by the Customs Authorities, which according to learned counsel for petitioner is a vintage car i.e. Lincoln Continental Convertible, imported by the petitioner, through Bill of Lading No. YMLUW 1603544394 in terms of Notification bearing No. S.R.O. 833(1)/2018 dated 03.07.2018, whereas, following relief 'has been sought: a) Declare that the actions of the respondents in not clearing the petitioner's consignment in accordance with the provision of the Notification bearing No. SRO 833 (1)/2018 dated 03.07.2018 ('the Notification') are illegal, unlawful, unconstitutional, of no legal effect and to strike down the same; b) Declare that the 1963 Lincoln Continental Car imported by the petitioner ('the Subject Consignment') is to be released subject to fulfilling the formalities contained in the Notification; c) Declare that the failure by the respondent to allow the import and release of the Subject Consignment in accordance with Notification is illegal and unlawful; d) Direct the respondents that the Subject Consignment may be released to the petitioner for safe custody upon deposit of the said amount of customs duty (as stipulated by the said Notification) with the Nazir of this Court to prevent the Subject Consignment from being auctioned and until this matter stands resolved and restrain the respondents directly or indirectly through their officer, employees or assigns from taking any adverse/ coercive action against the petitioner by auctioning/ destroying/re-exporting the Subject Consignment; e) Grant any further and/or better relief that this Hon'ble Court may deem fit and appropriate under the circumstances; f) Grant costs of the petition.
2. Learned counsel for petitioner after having referred to relevant documents of import of the subject vehicle submits that the vehicle of the petitioner is covered under PCT Code 87.03 of the First Schedule to the Customs Act, 1969, upon which pursuant to aforesaid SRO, the Federal Government, in exercise of the powers conferred by section 19 of the Customs Act, 1969, section 16 of the Federal Excise Act, 2005, clause (a) of subsection (2) of section 13 of the Sales Tax Act, 1990 and sections 148 and 53 read with Second Schedule to the Income Tax Ordinance, 2001, has been pleased to exempt the vintage or classic cars and jeeps from so much of the customs-duty, regulatory duty, additional customs duty, Federal excise duty, sales tax and withholding tax as are in excess of the cumulative amount of US dollars five thousand (US$ 5000/-) per unit. Whereas, according to learned counsel, in terms of Para. 20 of Import Police Order, 2016, the Federal Government is competent to allow import, in relaxation of any prohibition or restrictions under this Order. Per learned counsel, the petitioner when approached to the concerned customs authorities for the release of subject vintage car on payment of US $ 5000/-, the respondents, without assigning any reasons, have refused to accept the amount of duty (US $ 5000/-) and also did not allow the release of the subject vehicle.
3. Notice of instant petition was issued to the respondents, pursuant to which, Mr. Khalid Rajper, advocate has shown appearance along with concerned officials and filed para-wise comments including copies of two internal letters dated 09.08.2018 and 19.11.2018, wherein, it has been stated that in view of an ambiguity in the SRO 833(1)/2018 dated 03.07.2018, referred to hereinabove, the concerned Collector had written a letter to Secretary (Tar-III), Revenue Division, Federal Board of Revenue, Islamabad seeking clarification as to whether the aforesaid notification is issued in conformity with the provisions of Import Policy Order, 2016 or not, as according to learned counsel for respondent, the import of any vehicle is regulated through Import Policy Order, 2016, therefore, if there is any change including relaxation relating to import of vehicle, there has to be corresponding amendment in the Import Policy Order, 2016. It has been further contended by learned counsel for respondent that unless there is a SRO from Ministry of Commerce relating to relaxation in terms of Para. 20 of Import Policy Order, 2016, the import of any vehicle cannot be allowed, therefore, clarification has been sought by respondents from the concerned Ministry to this effect.
4 We have heard the learned counsel for the parties and perused the record with their assistance, and also examined the relevant provisions of Import Police Order, 2016 as well as SRO 833(1)/2018 dated 03.07.2018.
From perusal of S.R.O. 833(I)/2018, dated 03.07.2018, it appears that same has been issued under the powers conferred upon the Federal Government in terms of section 19 of the Customs Act, 1969, which reads as follows:- "19. General power to exempt from customs-duties.-- (1) The [Federal Government], whenever circumstances exist to take immediate action for the purposes of national security, natural disaster, national food security in emergency situations, protection of national economic interests in situations arising out of abnormal fluctuation in international commodity prices, removal of anomalies in duties, development of backward areas [,] implementation of bilateral and multilateral agreements [and to any international financial institution or foreign government to owned financial institution operating under a memorandum of understanding, an agreement or any other arrangement with the Government of Pakistan], subject to such conditions, limitations or restrictions, if any, as it deems fit to impose, may, by notification in the official Gazette, exempt any goods imported into, or exported from, Pakistan or into or from any specified port or station or area therein, from 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.]
(2) A notification issued under subsection (1) shall be effective from the day specified therein, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day.
(3) Notwithstanding anything contained in any other law for the time being in force, including but not limited. to the Protection of Economic Reforms, 1992 (XII of 1992), and notwithstanding any decision or judgment of any forum, authority or court, no person shall, in the absence of a notification by the Federal Government published in the official Gazette expressly granting and affirming exemption from customs duty, be entitled to or have any right to any such exemption from or refund of customs duty on the basis of the doctrine of promissory estoppel or on account of any correspondence or admission or promise or commitment or concessionary order made or understanding given whether in writing or otherwise, by any government department or authority.] [(4) The Federal Government shall place before the National Assembly all notifications issued under this section in a financial year.
(5) Any notification issued under subsection (1) after the commencement of the Finance Act, 2015 shall, if not earlier rescinded, stand rescinded on the expiry of the financial year in which it was issued.
[Provided that all such notifications, except those earlier rescinded, shall be deemed to have been in force with effect from first day of July, 2016 and shall continue to be in force till thirtieth day of June, 2018, if not earlier rescinded: Provided further that all notifications issued on or after the first day of July, 2016, and placed before the National Assembly as required under subsection (4) shall continue to be in force thirtieth day of June, [20191, if not earlier rescinded by the Federal Government or the National Assembly.]]
5. Perusal of hereinabove provision of Section 19 of the Customs Act, 1969, shows that the Federal Government has been authorized to exempt from payment of customs duty notwithstanding any provision either contained under Customs Act, 1969 or under any other law for the time being in force including Income Tax Ordinance, 2001 and Sates Tax Act, 1990 etc. From perusal of provision of Import Policy Order, 2016, it can be seen that certain restrictions and prohibitions have been imposed in terms of Para. 5 of the Import Policy Order, 2016, therefore, regulating the import and export of the goods into or outside Pakistan, however, subject to prohibitions and restrictions. Whereas, in terms of Para. 20 of the Import Policy Order, 2016, the Federal Government is empowered to allow imports in relaxation of any prohibition or restriction under this Order. It is pertinent to note that Para. 20 of the Import Policy Order, 2016 allows the Federal Government to relax any prohibition or restriction relating to import, and there seems no restriction upon the Federal Government to even to allow complete exemption from payment of custom duty and taxes or to reduce the amount of customs duty in appropriate cases as per policy, SRO (1)/2018 dated 03.07.2018 has been admittedly issued by the Federal Government through Ministry of Finance, Economic Affairs, Statistics and Revenue, (Revenue Division), Government of Pakistan, whereby the Federal Government has been pleased to exempt the vintage or classic cars, jeeps meant for transport of persons on the import, from payment of customs duty, regulatory duty, additional customs duty, federal excise duty, sales tax and withholding tax as are in excess of cumulative amount of US Dollars Five Thousand (US $ 5000) per unit, and has also been pleased to define the "vintage or classic cars and jeeps as "old and used automotive vehicles" falling under PCT Code 87.03 of the First Schedule to the Customs Act, 1969 and manufactured prior to January 01, 1968, whereas, there has been no reference to any other restriction or prohibition as may be attracted in terms of Import Policy Order, 2016 in respect of other imported vehicles, which shows the clear intention of the Federal Government, not only to exempt a vintage or classic cars from payment of duty and taxes in excess of cumulative amount of US$ 5000/- per unit, but also to relax other prohibitions or restriction, if any, in respect of other vehicles as per Import Policy Order, 2016.
6. In view of above facts and circumstances of the case, we are of the opinion that there seems no ambiguity regarding import of vintage or classic cars and jeeps on payment of US $ 5000/- falling under PCT Code 87.03 of the First Schedule to the Customs Act, 1969, provided it is manufactured prior to January, 01, 1968.
Accordingly, respondents, under the facts and circumstances of instant case, and, in the light of SRO 833(1)/2018 dated 03.07.2018, issued by the Federal Government, are required under law to release the vehicle of the petitioner on payment of US $ 5000. Moreover, custom authorities are under legal obligations to abide by all such notifications and SROs, issued by Federal Government under section 223 of the Customs Act, 1969.
Accordingly, instant petition is allowed along with listed application, with the directions to the respondents to release the vehicle of the petitioner within seven days on payment of US $ 5000 in terms of SRO 833(1)/2018 dated 03.07.2018. The request of the petitioner for issuance of Delay and Detention Certificate shall also be decided in accordance with Law.
Petition stands allowed along with listed application in the above terms.