MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this single Judgment I propose to decide FAO Nos.
340/2012, 345/2012, 346/2012; 272/201 1 and 342/2012 as all appeals are against an order of respondents No: 3 and 4.who rejected the appellants' reply to show cause notices issued for the payment of APC for USF .
2. All the appellants are doing the business of providing telecommunication services to its customers and are holding the valid licenses issued by the competent authority to do the business. The Respondent No. 1 formulated a Telecommunication (Deregulation) Policy in July, 2003, the policy was made applicable to achieve the objects of deregulating and liberalizing the telecommunication sectors and to increase services choice for its customers at competitive and affordable rates, to promote infrastructure development, especially infrastructure which will increase tele-density and availability of telecommunication services in all market segments and to encourage local telecom manufacturing/service industry , accelerate the expansion of telecommunication infrastructure in un-served and under-served areas. The appellants while providing services to its customers generate funds on incoming international 'traffic, the said funds are defined as the premiumon the earning of the appellants: According to the policy , that as long as the premium contin ues to exist, a reasonable portion of the premium is proposed to he used to promote infrastructure expansion for providing the telecommunication facilities to the customers. The portion of premium utilized in promoting infrastructure expansion is known as "Access Promotion Contribution" (APC). The policy further provides that unless and until the policy is not reviewed the LDI licensees could retain a fixed share (upto 6 US cents per minute) of termin ation charges paid by international carriers on incoming calls to the appellant, the remaining amount which is called Access Promotion Contribution will be passed on the local loop licensees to encourage them to foster infrastructure development to increase tele-density . The sharing of revenues from incoming international calls, between LDI/LL licensees would be determined through a formula specified by PTA. The APC so collected will be reviewed and notified by the authority after every six months. The policy provides that APC is a portion of premium over the cost of conveying and termination the traffic in Pakistan. For promoting and expansion of the infrastructure in un-served and under served areas the Authority established a fund under the name and style of Universal Services Fund (for International call terminated on mobile network). The APC payable on calls received on mobile will be the difference of approved settlement rate minus interconnection charges payable to the mobile network operator . The present dispute only pertains to the Universal Services Fund
(USF) payable on mobile phone use only. Respondent No. 1 has also framed Rules of 2004 under Section 57 of the ACT of 1996 which were notified on 31.12.2004. The Authority under the powe rs conferred under Clause (o) of the sub-section (2) of Section 5 of the Act of 1996 also framed Regulations of 2005, which were notified on 16.8.2005. The appellants' claim is that respondents are charging/ imposing payments of APC for USF as fixed charges illegally and without lawful authority . Under the Rules of 2004 a formula is provided for calculating APC contribution and calculating APC for USF. The respondent No. 1 is not correctly APCL in terms of Rules 2004 and Regulations 2005. The respondents are demanding the amount for USF which they fixed and not the negotiated amount. For calculating the APC for USF contribution a formula is provided in Rule 8(4) of 2004 Rules. Under the said rule the appellants are at liberty to sell products/services as per permissible range rate. The respondents have issued show-cause notice to the appellan ts for payment of APC for USF by calculating the same on fixed charges.
The appellants replied the show-cause notices, the respondents No. 4 and 5 refused to withdraw the notices vide impugned orders dated 30.6.2012, 02.6.201 1 and 17.7.2012, hence the present appeals.
3. Learned counsel for appellants submits that the appellants are only prosecuting the appeals to the extent of impugned order and not challenging the vires of Act, Rules and Regulations and reserved their right to challenge the vires of Act, Rules and Regulations in separate and appropriate proceedings, if need be.
4. Learned counsel submits that the impugned order is without lawful authority , ultra vires to the Act, Rules and Regulations, mala fide, arbitrary , discriminatory and contrary to the principle of natural justice, while passing the impugned order the respondents have failed to interpret Rules and Regulations of 2004 & 2005 respectively .
Respondent No. 1 has incorrectly and arbitrarily fixed APCL contribution and APC for USF. The legitimate operators have a right to negotiate on approved Rate/Settlement Rate, receive the payment accordingly and pay the APC for USF on the basis of amount which they actually received on the lower rate. Access Promotion Contribution can only be ascertained on the basis of formula provided in Rule 8 of AP Rules whereas the authority under Rule 9 is only empowered to ascertain APC and not the Rate of APC. Every licensee is thus given the option to negotiate the rate with International customer within the permissible range of levels of ASR. The contribution is payable only on the basis of rates actually negotiated and amount actually received. The contribu tion of USF and APC are in the nature of levy and as such the levy can only be imposed under the rules by the competent authority . The PTA is not a competent authority . The respondents are enjoying the powers to fix maximum or minimum settlement rates but the contribution can legally be demande d either on minimum rate or on the actual rate negotiated by the LDI.
Learned counsel submits that the APC for USF is payable only on negotiated rates with the permissible range of ASR in terms of Rule 2 of AP Rules, 2004. The respondents thus are demandin g the amount detailed in show- cause notice without lawful authority and against the Rules and Regulations applicable on the appellants' case.
Learned Counsel has relied on Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255), Zia-ur-Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015 ), Messrs United Bank Ltd. v. Federation of Pakistan and others (2014 SCMR 856), Muhammad Amin Muhammad Bashir Limited v. Government. of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary of Petroleum and Natural Resources Islamabad and 8 others (2009 CLD 1498 ), Khalid Habib v. Pakistan Telecommunication Corporation Ltd and others (2014 PLC (C.S) 203) and Messrs Al- lblagh Limited Lahore v . The Copyright Board Karachi and others (1985 SCMR 758 ).
5. Learned Counsel for respondents submit that the petitioners have been heard and the competent authority decided the dispute of show-cause notice according to law, the purpose of Universal Services Fund is a development and expansion of infrastructure of telecommunication facilities which are in the interest of the appellants as in case of availability of vast infrastructure the appellants will be in a better position to provide the better facility to its customers. The Rules and Regulations are farmed under Pakistan Tele-Communication (Reorganization) (Amendment) Ordinance (XVI of 2005) and Pakistan Telecommunication (Re-Organization)
(Amendment) Act (11 of 2006), hence till the rules and regulations are not amended and remain in force the appellants have no right to challenge the respondents demand for payment of Access Promotion Contribution
(APC) for Universal Services Fund (USF). The appellants have no right to withheld or objected the payment of demanded amount. Learned Counsel for respondent Authority objected the jurisdiction of Lahore High Court, Lahore and submits that respondent Authority run and manage their office at Islamabad and impugned order has been passed at Islamabad hence Islamabad High Court has the exclusive jurisdiction to decide the dispute between the parties. Learned Counsel submits that the respondents have stopped to recover USF and is providing relief to the appellants as the margin of premium is no more available to the appellants.
6. Heard. Record perused.
7. First argument of learned Counsel for the respondent Authority is that this Court has no jurisdiction to entertain and decide the issue in dispute, as respondent Authority is running and managing their office at Islamabad and impugned order has been passed' in Islamabad hence Islamabad High Court has the exclusive jurisdiction to decide the dispute between the parties.
8. The respondents have not denied the fact that Authority is granting Licenses to the citizens of Pakistan, its licensees are running their business all over the Pakistan and the Pakistan Telecommunication Authority has been established under the Federal Statue.
9. Under Section 7 of the Pakistan Telecommunication (Re-organization) Act, 1996, an appeal is provided against the decision and orders of Authority . Section 7 of the Act of 1996 is read as under:--- "7. Appeal and revision. -- (1) A person aggrieved by any decision or order of the Authority on the ground that it is contrary to the provisions of this Act, may, within thirty days of the receipt of such decision or order , appeal to the High Court in the manner prescribed by the High Court for filing the first appeal before that Court and the Court shall decide such appeal within ninety days."
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3. The perusal of the Section 7(1) of the Pakistan Telecommunication (Re-organ ization) Act of 1996 (hereinafter referred to as the Authority) shows that words used are "appeal to the High Court". Now it has to be seen what is the meaning of word High Court, whether it is the Islamabad High Court alone or the High Court of other provinces as well having the jurisdiction to hear the appeals under Section 7(1) of the Act of 1996. It is an admitted fact that Act of 1996 was promulgated in 1996 it was amended in 2005 when Pakistan Telecommunication (Re-organization)
(Amendment) Ordinance was promulgate d in 2005 and lastly the Act of 1996 was further amended in 2006 came into existence. In the Act of 2006 in Section 7 of Act of 1996 the following amendments were inserted:--- "Amendment of Section 7, Act XVII of 1996.--- In the said Act, in section 7,---
(a) in sub-section (1),---
(i) after the words "High Court" occurring for first time, the words and comma "or to any other Tribunal established by the Federal Government for the purpose." shall be inserted; and
(ii) after the word "Court", occurring twice, the words and comma "or the T ribunal," shall be inserted; and
(b) sub-section (3) shall be omitted."
The language of Section 7 of the Act of 1996 shows that word High Court remained unchanged and was not amended with the High Court of Islamabad High Court, the Islamabad High Court Act was promulgated in 2010 Section 4 of Islamabad High Court Act, 2010: "4. Jurisdiction.-- Islamabad High Court shall have, in respect of the Islamabad Capital Territory original, appellate, revisional and other jurisdiction, as under the Constitution or the laws in force immediately before the commencement of this Act, is exercisable in respect of the said territory by the Lahore High Court: Provided that Islamabad High Court shall have original jurisdiction in suits and proceedings having pecuniary value of ten million rupees or more."
10. The argument of learned counsel for respondent is that under Section 4 of the. Islamabad High Court Act, 2010, Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory . The impugned order is passed at Islamabad and the Islamabad High Court has an exclusive jurisdiction to entertain appeal against the impugned order , and the jurisdiction of Lahore High Court is ousted. The perusal or Section 4 of Islamabad High Court Act, 2010 will show that Islamabad High Court has the jurisdiction in respect to the Islamabad capital territory , original, appellate, revisional and other jurisdiction as under the Constitution or the laws in force immediately before the commencement of the Act. Islamabad High Court is enjoying the jurisdiction in respect of said territory which was earlier enjoyed by the Lahore High Court. The words used in Section 4 are "as under the Constitution is exercisable in respect of the said territory by the. Lahore High Court, Lahore" which shows that before promulgation of Islamabad High Court Act, 2010, the Lahore High Court was enjoying the jurisdiction on the Islamabad capital territory . The words used in this Section as "is exercisable in respect of the said territory of Lahore High Court" are clear in nature. The word has been used as "is" meaning thereby in spite of promulgation of Islamabad High Court Act, 2010, the Lahore High Court has the jurisdiction on Islamabad capital territory; the logical conclusion of the above-said words is that Lahore High Court, Lahore and Islamabad High Court are enjoying concurrent jurisdiction on Islamabad capital territory .
In M/s. Al-Iblagh Ltd 's case (Supra) the Hon'ble Supreme Court of Pakistan opined as under (at pages 758 and 762):--- "While dealing with a somewhat similar situation, this Court was called upon to examine the terms of Article 98 of the 1962 Constitution (which are similar in Commissioner , Pakistan and others 'I case PLD 1968 SC 387. In this case the East Pakistan High Court had held that the said High Court could not exercise jurisdiction with regard to the decisions of the Election Commission of Pakistan as the said body was not located in nor performed its function in the Province of the East Pakistan and therefore, East Pakistan High Court was precluded on account of territorial limitations, from exercising jurisdiction in connection with orders passed by it. While rejecting this contention it was observed by this Court that:--- The plain meaning of the words.-- "a person performing in the Province functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the person or author ity to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories." (Underlining is ours)
It explained that: The Central Ministries as well as many Departments of the Central Government as located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design...." (underlining is ours) and found that the orders made or proceedings taken by the said Departments in connection with the affairs of the Central Government but having effect on parties in East Pakistan, would be subject to the writ jurisdiction of the High Court of that Province.
The rules laid down in the said case would, we think be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the 'Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such person, jurisdiction to hear the case.
The learned Deputy Attorney General Mr. Munir A. Sheikh who appeared on behalf of the respondents-Copyright Board, supported this interpretation of the Constitutional Provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have' been dismissed for lack of jurisdiction by the said High Court; as it also had jurisdiction to entertain it, concurrently with the Sindh High Court.
We agree and are of the opinion that both the' Lahore - High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a writ petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case wilt therefore, go back the Lahore High Court for decision of the writ petition filed the appellant before it for decision on merits, in accordance with law ."
In Superintendent of Police Headquarter Lahore and 2 others v. Muhammad Latif (PLD 1988 SC 387), the Hon'ble Supreme Court of Pakistan held as under: "that the Election Commission is a person or authority which exercises jurisdiction in the Province of East Pakistan in connection with the affairs of the Centre namely elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution, as such; Commission is subject to the jurisdiction of the High Court notwithstanding that its main office and Secretariat are located in the Province of West Pakistan because the plain meaning of the words "a person performing in the Province functions in connection with the affairs of the Centre" exclude territorial limitation, such as that the person or authority to whom the High Court is empowered to issue writ must be amenable to its jurisdictio n either by residence or location within those territories."
The issue came up for .discussion in LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary , Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498 ), the learned Single Judge of the Lahore High Court after-considering about all the judgments on the subject has ruled as under:
(A) The Federal Government or any body Politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Province, shall still he deemed to function, all over the country .
(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.
In this context, illustrations can be given that if some duty/tax has been impos ed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.
(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience."
The dictum laid down by the Honourable Supreme Court of Pakistan early establishes that any order passed by the PTA being the Federal Authority is appealable in all the High Courts of Pakistan. In the present case the impugned order was served at Lahore, the amount was payable at Lahore, the Authority is Federal Authority , hence the Lahore High Court has the jurisdiction to entertain and decide the appeals.
11. It is not the dispute between the parties that appellants are not holding valid licenses, the appellants are not disputing the validity of the Act, Rules and Regulations framed on the subject. The respondent admittedly issued show-cause notice to appellants under Section 23 of the Pakistan Telecommunica tion (Reorganization) Act, 1996 (hereinafter referred to as Act) claiming as under: "AND WHEREAS sub-rule (2) of rule 5 of AP Rules and sub-regulations (3) and (4) of regulation 6, and sub- regulation (2) of regulation 10 of the AP Regulations make it obligatory on the licensee to deposit APC for USF contribution within ninety (90) days after the end of calendar month for which the payment obligation arises.
AND WHEREAS sub-regulation (6) of regulation 10 of AP Regulations provides that "where an LDI Licensee fails to make the payment in accordance with sub-regulation (1), (2), (3) or (4), it shall be liable to a fine not less than Rupees five hundred thousand and a further fine calculated as one and half percent per month, or a fraction thereof of amount, defaulted by that LDI Licensee for each month the default continues.
12. The appellants filed reply of the show-cause notices as under:-- "5. Without prejudice to the foregoing, the calculations so made by the Authority i.e. Rs. 66,487,263, is not based on the proper application of the so-called 'formula' to the 'rates' and 'minutes' submitted by the Company . The minimum and maximum price or permissible rate has not been applied to the Com pany in its true perspective i.e. the approved settlement rate that should be applied to minutes data submitted by the Company , is not being, applied. In fact, higher rate at which the Company never did its business is applied to the minutes and thus an exorbitant calculation is arrived at, on the basis whereof a 'demand note' is prepared and put to the Company for payment. This is, inter alia, the, main cause of dispute between the Authority and the Company which has to be resolved once and for all, and that too, too early to avoid more confusion.
6. In view of the aforesaid, kindly afford us a personal hearing to explain our stance. Once the actual amount is determined, the Company undertakes to pay as when the 'demand note' is handed over to it. Hence, the Show- Cause Notice having been issued on misconceived basis is liable to be withdrawn and the matter , otherwise, resolved as aforesaid"
13. The argument of learned Counsel for appellant is that appellants are bound to pay USF on the negotiated rates (actual received amount) as per formula provided by the Rule 2(p) of AP Rules, 2004 whereas the respondents are demanding the amount of USF on Approved Settlement Rate (ASR). The, rules framed under Section 57 of the Pakistan Telecommunication (Reorganization) Act, 1996 (XVII of 1996) defines the following terms as under:-- "(a) "Access Promotion Contribution (APC)" means the payments made by LDI Licensees to LL Licensees or to the Universal Service Fund pursuant to these rules;
(e) "APC for USF" means the mopped up amount of Access Promotion Contribution on cellular termination diverted to Universal Service Fund;
(f) "APC for USF Contribution" means the amount determined by the Authority in accordance with sub-rule (4) of rule 8;
(g) "Approved Accounting Rate" means Total Accounting Rate approved by the Authority under rule 6;
(h) "Approved Settlement Rate" means one-half of the Accounting rate.
(r) "Total Accounting Rate" means the rate that a licensee negotiates with foreign service provider for handling one minute of international telephony service.
(s) "Universal Service Fund" or "USF" means the Universal Service Fund created and maintained by the Federal Government.
(5) Contribution to Universal Service Fund.--- (I) For each month that it provides telecommunication services, a LDI Licensee shall pay to the Universal Service Fund an amount determined by multiplying the APC for USF Contribution for that country by the monthly volume of Incoming International Telephony Service from that country , measured in call-minutes, carried by the Licensee and terminated on the telecomm unication system of any Mobile Licensee.
(2) Payment under sub-rule (I) shall he made not later than ninety days after the end of the calendar month for which the. payment obligation arises.
(6) Approved Accounting Rates --- (I) The Authority shall maintain a lip of approved Total Accounting Rates for different countries.
(2) The Authority shall update the list of Approved Accounting Rates from time to time.
(3) At such time as, the Authority updates the list' of Approved Accounting Rates, the Authority shall forward a copy of the updated list to each LDI Licensee, LL Licensee and Mobile Licensee.
8(4) In making a determination of the APC, for USE Contribution, measured on a per minute basis, unless the, Authority determines that some other basis of calculation is preferable; the Authority shall determine the APC for USE Contribution applicable to Incoming International Telephony Service from a country . The APC for USF Contribution of a country shall .consist of the Approved Settlement Rate for that Country , less LDI share, to be determinedby the Authority which may be an amount upto USSO.06 and less the local interconnection termination contribution due to an operator of a' public mobile switched network in respect of one minute of Incoming International T elephony Service as determined by the Authority .
(9) Review of APCL Contribution and AFC for USF Contribution .-- (1) No less frequency than once every six months, the Authority shall review the levels of APCL Contribution and APC for USF Contribution: Provided that under special circumstances. the Authority may, at any time, make a determination changing the APCL Contribution and APC for USE Contribution, from that currently in effect, in accordance with regulations to be made by the Authority .
(2) In performing its review under sub-rule (1), the Authority shall consider recent changes in the Approved Accounting Rates, the margin available to a LDI Licensee from Incoming International Telephony Service taking into account the Approved Accounting Rates and the levels of APCL Contribution and APC for USF Contribution, and such other factors as the Authority considers appropriate.
(3) The Authority shall notify any change in the APCL Contribution or APC for USF Contribution at least thirty days before such change becomes effective.
10. Under Section 21 of the Pakistan Telecommunication (Reorganization) Act, 1996 Article 3.5 defines the Access Promotion Contribution as under:--- 3.5 ACCESS PROMOTION CONTRIBUTION 3.5.1. The sharing of revenues from incoming international calls, between LDI/LL licensees shall be determined through a formula specified by the Authority from time to time, however for the period upto the policy review the Licensee is permitted to retain a fixed share (upto 6 US cents per minute) of termination charge paid by international carriers for termination of international incoming calls. The remaining amount called "Access Promotion Contribution" (APC) shall be passed on to local loop licensees.
3.5.2. The APC derived from the formula would be reviewed and notified at least once every six months.
3.5.3. The APC shall be the PTA approv ed Total Accounting Rate (TAR) minus six (6) cents which shall not be changed without prior written approval of the authority .
3.4 Universal Service Fund Contribution.
3.4.1. In addition to the contribution under 3.3.1, the Licensee shall contribute to the Universal Service Fund in an amount calculated on the basis of 1.5% (or such lesser amount as determined by the Rules) of the Licensee's annual gross revenue front Licensed Services for the most recently completed Financial Year of the Licensee minus inter-operator payments and related PTA/FAB mandated payments. However , initial license fee and initial spectrum fee shall not be deducted from the gross revenue.
3.6. UNIVERSAL SER VICE FUND CONTRIBUTION 3.6.1. In addition to the contribution under 3.4.1, the Licensee shall contribute to the Universal Service Fund in an amount calculated on the basis of 1.5% (or such lesser amount as determined by the Rules of the Licensee's annual gross revenue from, Licensed Services for the most recently completed Financial Year of the Licensee minus inter-operator payments and related PTA/FAB mandated payments. However , initial license fee and initial spectrum fee shall not be deducted from the gross revenue.
14. The formula for the payment of APC for USF is provided in regulation 7(2) which is read as under:-- "APC for USF Contribution = (ASR - LDIS - MTR) x N Where ASR = Approved Settlement Rate LDIS = LDI Share MTR = Mobile T ermination Rate N= No. of call-minutes for the month of Incoming International T elephony Service
15. Under Rule 9 of the Access Promotio n Rules, 2004 the Authority is reviewing the Approved Settlement Rates
(ASR) directing the operator to comply with permissible range of ASR in accordance with Rule 2(p) of AP Rules, 2004.
16. The dispute between the parties is, only the appellants claim that APC for USF is payable as per formula on the negotiated amount which the Authority is fixing from time to time. For example while reviewing of Approved Settlement Rate/LDI share and APC vide letter dated 06.1.2009, the authority Approved Settlement Rate for LDI operators from US $0.10 per minute to 0.125 per minute and permissible' range of ASR was fixed 95%, meaning thereby the cushion for negotiating the Approved Settlement Rate was made available to appellants upto 5%. The appellants' case is that they are bound to pay USF Contribution as per formula on actual receipts which they received from International Operator . Suppose the appellants negotiate rate per minute With the International Customer/Operator at US $0.10 against the Approved Settlement Rate of US $10.5 as the cushion of 5% is permissible according to the decision of authority In this case after deducting the LDI Share and payment of 'WA the balance will be payable for UST. According to formula the negotiated amount within the permissible range will be the available amount for sharing among the parties as per the formula in terms of regulation 7(2) of 2005 Regulations The argument of learned 'counsel for respondent that the Approved Settlement Rate as fixed by the authority will remain unchanged and the permissible range/rebate will be adjusted towards the payment of LDI is not sustainable in the eye of law for the simple reason that the Authorityis fixing the LDI share and if it is the intention of authority that permissible cushion in the shape of permissible range is deductible from the LDI share, the authority must have mention it while reviewing the Approved Settlement Rate, the authority under the rules while reviewing the Approved Settlement Rates/LD1Share and APC is specifically using the words as under:-- "......T ill such Notification the LDI operat ors are directed to comply with the 95% permissible range of ASR in accordance. with Rule 2(p) of AP Rules. 2004.
Rule 2(p) provides as under:-- "2(p) "Permissible Range" means range of prices between the Approved Settlement Rate; and ninety five per cent of the Approved Settlement Rate or such, other percentage of the Approved Settlement Rate as the Authority may at any time, or from time to time, determine and notify thirty days in advance."
The language of Rule 2(p) is clear which says the Permissible Range is range of prices between the Approved Settlement Rate and permissible range of the Approved Settlement Rate or such other % of the Approved Settlement Rate as the Authority may at any time or from time to time determine and notify it thirty days in advance, the mandate of the 2(p) is that licensee can negotiate rates with the International Operator within the permissible range notified by the authority from time to time, however from the language of Rule 2(p) that licensee could not negotiate rates with the International Operator less than the permissible range. The argument of learned counsel for appellants that the payment for USF is levy, is not relevant in the present case for the simple reason that they are not challenging the legality and validity of the Rules and Regulations framed Under the Act, 1996 amended from time to time.
17. The upshot of the above discussion is that the impugned orders dated 03.6.2012, 02.6.201 1 and 17.7.2012 are set aside as the respondents have not raised the demand as per the amount actually received according to Formula provided by the rules and regulations of 2004 and 2005 respectively . Consequently all the appeals are allowed.