SYED ARSHAD ALI J. Messrs Nafees Plastic Industries through its proprietor, namely, Gul Ayaz, through the instant constitutional petition, has approached this Court praying Mal:- "It is therefore, humbly prayed that on acceptance of this petition, this honorable court may hold, direct and declare:- I. That the tenor and language used in SRO 1212(I)/2018 and SRO 1213(I)/2018 both. dated 5.10.2018 is unambiguous, without any restriction, classification and the stance of the respondents that petitioner is required to follow the conditionalities contain in "CGO 1" of 2021 dated 25.2.2021 is exfacie illegal and refusal of the respondents to extend benefit of Letter C.No. 2(2)L&P/2016 dated 31.8.2021 is prima facie discriminative, in negation of constitutional guaranteed rights, in excess of jurisdiction, based on mala fide, unreasonable and not binding upon the rights of the petitioner.
II. That by virtue of issuance of Letter C: No. 2(2)L&P/2016 dated 31.8.2021 the conditionalities incorporated in "CGO 1" of 2021 dated 25.2.2021 have been relaxed to the industrialist termed as smaller whereas the petitioner is also at par and facing similar financial constrains is entitled for the release of his imported raw materials at Customs Port, Karachi in line with terms contain in Letter C. No.2(2)L&P/2016 dated 31.8.2021 and refusal thereof is ex facie illegal, discriminative, unlawful and illegal.
III. That the petitioner's entire imported consignments are to .be cleared at Customs House, Karachi and Port Qasim, Karachi' in terms of Entry No. 151 of the Sixth Schedule to the Sales Tax Act, 1990, and insistence of respondents that the imported raw materials is to be cleared in line with CGO No. 1 of 2021 at Azakhel Dry Port, is in defiance, contemptuous and to nullify the judgment of the apex Supreme Court of Pakistan rendered in "Pakistan v. Hazrat Hussain" (2018 SCMR 939 = 2018 PTD 1204).
IV. That respondents are required to clear the consignments of raw materials against posted cheque in term of Entry No. 151 of Sixth Schedule to the Sales Tax Act, 1990 with exemption certificate issued by RTO, Peshawar; to ensure the delivery of the imported raw materials consignments at the unit of petitioner at Bara, Khyber District and finally to issue consumption certificate as laid and enumerated in the judgment of this honourable court upheld by the apex Supreme Court of Pakistan and issuance of Customs General Order No.1 of 2021 is illegal, in excess of jurisdiction and void ab initio.
V. That no sales tax by any name. including but not limited to the provisions of Sales Tax Act, 1990 by virtue of Notification SRO 1212(I)/2018 dated 5.10.2018 and advance Income tax under the Income Tax Ordinance, 2001 read with Notification SRO 1213(I)/2018 dated 5.10.2018 is payable by the petitioner end the restriction imposed by the respondents on the clearance and transportation of the consignments destined for manufacturing unit in erstwhile FATA Tribal areas is unlawful, illegal, based on discrimination, void ab initio, in excess of jurisdiction, abuse of powers, against express provision of law, without lawful authority and liable to be declared unlawful.
VI. That the business conducted by the petitioner in erstwhile Tribal area commonly known as merged areas of Khyber District is fully protected under the doctrine of locus poenitentiae, promissory estopple, having created vested rights in terms of judgment of apex Supreme Court of Pakistan in Pakistan v. Hazrat Hussain" (2018 SCMR 939) read with Notification SRO No.1212(I)/2018 and SRO 1213(I)/2018 both dated 5.10.2018, immune from payment of Advance Income Tax and Sales Tax while importing raw materials and goods for its utilization and/or consumption in his unit in erstwhile Federally Administered Tribal Areas being individual with effect from 1st June, 2018 to 30th day of June, 2023, and refusal of the respondents is nullity in law, illegal and not binding upon the rights of the petitioner.
VII. Any other appropriate remedy not also specifically mentioned may be granted with cost throughout".
2. The precise grievances of the present petitioners are that he is a permanent resident of erstwhile Federally Administered Tribal Area ("FATA") has established a plastic material manufacturing unit at erstwhile FATA and thus his 'income and supply' are exempt from impost of income tax as well as sales tax in terms of SRO 1212(I)/2018 and SRO 1213(1)/2018 both dated 05.10.2018. It is further averred in the petition that the respondents has issued a Custom General Order No.1 whereby it was directed that all importers, who are availing the said exemption would clear their imported consignment at Custom Dry Port Azakhel or Peshawar instead of Karachi and the goods have to be transported from Karachi Port to Custom Dry Port, Peshawar and Azakhel through a custom licenced bonded carrier and goods will be monitored and to be destined to the factory premises in terms of Tracking and Monitoring Cargo Rules, 2012. However, subsequently, through a letter date 31.08.2021 the plastic, wood and pharmaceutical industries whose total imports are lesser than 200 million per annum (FY) were allowed to clear their consignment/imported goods from Karachi Port.
3. Mr. Abdul Rauf Rohaila, the learned Senior Advocate appearing on behalf of the petitioner has argued that despite the fact that the petitioner's total import for a financial year is less than 200 million, the respondents are not allowing the petitioner to clear his imported consignment at Karachi Port, which is destined for its home consumption at the manufacturing unit of the petitioner situated at FATA. The representative of the department as well as the learned counsel for the respondents have stated that in this regard the clear data is not readily available with them, however, if the petitioner approaches respondents Nos.5 to 7, his grievances can be redressed if his import squarely falls within the concession provided by the FBR through notification/letter dated 31.08.2021. Even otherwise, there is nothing available on record that the said, facility has been denied to the petitioner in clear words, therefore, the petitioner is directed to approach the relevant authority/Collectorate at Karachi for doing the needful/release of his consignment in terms of letter dated 31.08.2021. If the relevant authority/Collectorate at Karachi is satisfied that the petitioner fulfills the concession/criteria provided in letter dated 31.08.2021, then in such a circumstances, his consignment would be released accordingly subject to fulfillment of all legal requirement by the petitioner. The application of the petitioner shall be positively decided within fifteen days by the respondents from receipt of this judgment.
4. The Writ Petition stands disposed of accordingly.