JUDGMENT/ORDER FAZAL SUBHAN, J. Through this writ petition, the petitioners invoked constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer: "It is, therefore, humbly prayed that on acceptance of this petition, this honourable Court may hold, direct and declare:- I. That the petitioner is entitled to get benefit of CGO 08/2022 dated 31.08.2022 read with letter C.No.2(2)L&P/2016 dated 31.08.2021 as the conditionalities incorporated in "CGO 1' of 2021 dated 25.02.2021, have been relaxed to the petitioner having less than Rs.200 million annually being smaller industrialist being at par with smaller industrialist, entitled for the release of imported raw material at Customs Port, Karachi and refusal thereof is ex facie illegal, discriminative, unlawful and illegal.
II. That respondents are required to clear the consignments of raw material against post dated cheques in term of entry No.151 of sixth schedule to the Sales Tax Act, 1990, 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 by RTO, Peshawar as laid and enumerated in the judgment of this honourable Court upheld by the apex Supreme Court of Pakistan.
III. 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 05.10.2018 and advance Income Tax under the Income Tax Ordinance, 2001 read with Notification SRO 1213(I)/2018 dated 05.10.2018, is payable by the petitioner and the refusal of the respondents for the clearance at Karachi and transportation of the consignments destined for manufacturing unit in erstwhile FATA Tribunal area Is unlawful, illegal, based on discrimination, void ab initio, in excess of jurisdiction, abuse of powers, against express provision of law, without lawful authority an liable to be declared unlawful.
IV. 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 poenitentia, promissory estopple, having created vested rights in term of judgment of apex Supreme court of Pakistan in Pakistan Versus Hazrat Hussain (2018 SCMR 939) read with Notification SRO No.1212(I)/2018 and SRO 1213(I)/2018 both dated 05.10.2018, immune from payment of Advance Income Tax and sales tax while importing raw material and goods for its utilization and for consumption in his unit in erstwhile Federally Administered Tribal Area being individual, with effect from 1st July, 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.
V. Any other appropriate remedy not specifically mentioned may also be granted with costs throughout.
2. Facts of the ease leading to file instant writ petition are that, the petitioner runs a Plastic manufacturing industrial Unit at Zulfiqar Garhi, Bara, Khyber District, Formally Federally Administered Tribal Area, established in the year 2016. The Economic Coordination Committee
(ECC) approved tax exemptions and incentives for the people of erstwhile Federally Administered Tribal Area (FATA) and Provincially Administered Tribal Area (PATA) for the period of five, years after the passage of 25th Constitutional Amendment. It was proposed that these businesses, however, need to be registered with the Federal Board of Revenue by September 30, 2018. The ECC also approved the exemption from Sales Tax, and allowed use of non-customs paid (NCP) vehicles in former FATA/PATA for a period of five years ending on June 30, 2023. The Federal Government issued a Notification No. SRO 1212(I)/2018 dated 05.10.2018, whereby Notifications No. SRO 888(I)/2018, SRO 889(I)/2018 and SRO 890(I)/2018 all dated 23.06.2018, and vide the same notification the Federal Government exempted from all kind of Sales tax, by whatever name called, on supplies made, as levied till 30th June 2023. It has been contended in the petition that case titled "Taj Packages Company (Pvt.) Limited v. Government of Pakistan (2015 PTD 203), it has been laid that sales tax under section 3 of the Act, is not payable by the FATA industrialists carrying on business in tribal Area while the judgment of this Court in respect of the similar matter was challenged before the august Supreme Court of Pakistan, in case titled Pakistan v. Hazrat Hussain (2018 SCMR 939), whereby dictum of this court has been upheld, but the Federal Board of Revenue issued a notification dated 25.02.2021, whereby amendments in the Customs General Order 12 of 2002, was made, which has adversely effected the cost of the present petitioner on transportation of the goods to its destination. In order to sort out the issue a meeting of Minister for Trade, Minister for Industries in presence of Chairman FBR was convened, so vide letter No.2(2)L&P/2016 dated 31.08.2021, FBR allowed to the industrialist having maximum import of Rs.200 million were clear consignments at Ports of Customs Collectorate in Karachi and Port Qasim Whereafter FBR also issued Customs General Order, (CGO) No.08/2021 dated 31.08.2022. The petitioner approached the. respondents for release of impugned raw material in terms of relaxation extended vide CGO No.08/2021 dated 31.08.2021 and letter C.No.2(2)L&P/2016 dated 31.08.2021, but they have refused and denied the same without any legal justification, hence, refusal of respondents to release the imported raw material at Karachi is illegal, based on discrimination, unreasonable and liable to be declared unlawful. Hence, the instant writ petition.
3. We have heard arguments of learned counsel for the parties and have perused the record.
4. In essence, the petitioner is seeking the benefit of Custom General Order (CGO) 08/2021, issued vide letter No. 2(2) L&P/2016, dated 31.08.2021, which is reproduced below for convenience sake.
GOVERNMENT OF PAKISTAN (REVENUE DIVISION)
FkDERAL BOARD OF REVENUE C.No. 2(2)/L&P/2016 Islamabad, the 31st August, 2021 CUSTOMS GENERAL ORDER NO. 08 of 2021 Subject: AMENDMENTS IN CUSTOMS GENERAL ORDER NO. 12 OF 2002 DATED 15.06.2002.
The Federal Board of Revenue is pleased to direct that the following further amendments shall be made in Customs General Order No. 12 of 2002 dated the 15th June, 2002, namely:- In the aforesaid order, in para 117, --
(a) In sub-para (i), after the word "Karachi" the, the expression "whereas ST type of GD will be filed for goods imported in bulk by manufacturers of edible oil located in erstwhile FATA/PATA" shall be added;
(b) In sub-para (iii), after the word "Peshawar" the expression "except the goods imported in bulk by manufacturers of edible oil, cleared under safe transportation regime as applicable to such manufacturers located outside erstwhile FATA/PATA" shall be added.
(c) After sub-para (v), the following new sub-para shall be added, namely:- "(vi). The provisions from sub-paras (i) to (iv) above shall not be applicable to the goods/raw materials imported by small manufacturers of plastic goods, wood, pharmaceutical, food and aluminium foil established upto March, 2021 in erstwhile FATA/PATA and having imports of Rs. 200 million or less per annum (FY). In case where the annual imports by these small manufacturers increase to more than Rs. 200 million, the imports of such an importer will be subject to provisions sub-paras (i) to (iv)".
Sd/- (Wajid Ali)
Secretary (Law and Procedure)
5. Earlier, through Writ Petition No.5105-P/2021, "M/S Apallo Plastic and Chemicals (Pvt.) Ltd. and others v. Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad and others" by invoking the jurisdiction this court under Article 199 of the Constitution of Islam Republic of Pakistan, 1973, (Constitution) and challenged, the vires of CGO-1, and No.9 wherein besides seeking to be subjected to entry No.151 of the sixth Schedule to the Sales Tax Act, 1990, and that CGO 'Nos.1 and No.9 had also prayed for extension of Para a and b of CGO No.8 to those petitioners, and this Court in view of the arguments and submissions, framed 3 points for consideration, wherein point No,(iii), therein is relevant to the present case, which reveals that: "(iii) Whether the impugned Circular No. 01 dated 25.02.2021 which was amended through Circular No. 08 dated 31.08.2021 allowing the import of those industrial concerned, whose total import is of a value less than Rs. 200 million per annum is discriminatory to the present petitioners whose import is more than Rs. 200 million per annum?"
6. Through the said judgment, the powers and functions of the Federal Board of Revenue in view of section 4 of the Powers of Federal Board of Revenue Act, 2007, as following: "The perusal of Section 4 of Act of 2007 would show that main functions of FBR, inter alia, are (i) formulation and administration of fiscal policies (ii) to make regulations, polices, programs, strategies in order to carry out the purposes of this Act; (iii) levy and collection of federal duties, taxes and other levies; (iv) quasi-judicial functions of deciding taxation cases/another appeals."
7. While concluding on the point of authority of the FBR, it was held that the FBR is competent under the law to issue customs General Orders/SRO's, hence, it can safely be concluded that CGO No.8/2021 is a valid instrument adopted as a policy to benefit the industrial units being operated in the erstwhile FATA. In the instant petition the only question raised by the petitioner is the grant of exemption from income and sales tax under CGO No.8/2021 and this question was discussed and decided through the ibid judgment by this court in Para 21, as under:- "As stated above, it has been the concern of the Revenue that since the present petitioners seeking immunity/exemption from payment of taxes should not mis-utilize the facility, So far neither any statistic nor data is available with the Revenue to ascertain the quantum of imported goods required for home consumption of the present petitioners. Therefore, the Revenue has classified the importers in two categories; first, those industries, whose import are upto the value of Rs. 200 million per annum and the second is the one whose import exceeds the value of Rs. 200 million. The obvious purpose of this classification is to keep check on the large scale import of goods in the tribal area. Indeed Legislature and other Taxing Authority have the power to classify persons or properties into categories and subject them to different dispensation of taxes."
8. In the case of "Nafees Plastic Industries v. The Commissioner, Sales Tax, Registered Tax Office, Peshawar", W.P.No.4155-P/2021, the petitioner therein had called in question the refusal of the respondents to release the raw material in accordance with the letter No.2(2) L&P/2016 dated 02.3.2021 and while deciding the lis it was observed in Para-2 therein as under:- "2. However, the main grievances of the present petitioner are that the manufacturing unit of the present petitioner is located in the erstwhile FATA and due to certain reasons the raw material which the present petitioner had imported had stuck at customs station Karachi. Later through circular No.9 of 2021, dated 1st May, 2021, the respondent has devised a mechanism for transportation of stuck up raw materials. It is the case of the present petitioner that they are ready to comply with all conditions as provided in circular No.9 of 2021, and other similar conditions which were circulated in this regard, however, respondents are reluctant to release the stuck up raw material at custom station Karachi. The later states that the respondents would obviously allow the present petitioner to transport the raw material provided the present petitioner complies with all conditions of circular No.9 of 2021, as well as other instructions issued by the FBR from time to time."
9. The case of petitioner stands on identical footing as he also seeks the benefit of CGO No.8/2021 for release of his consignment of raw material with the assertion that he is a smaller Industrialist having less than 200 million annually, and has shown its wiliness and readiness to comply all the circulars and conditionalities issued by the respondents from time to time. As the learned counsel for respondents has agreed to release the stuck up consignment of the petitioner, if he fulfill all the conditionalities mentioned in CGO No.8/2021 and other circulars issued now and then, hence this petition is disposed of accordingly.