1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a Division Bench of the High Court of East Pakistan dismissing a petition under Article 98 of the late Constitution filed to challenge the validity of an order of the Sales Tax Officer, Faridpur, refusing an application for refund of a sum of Rs. 11,775 alleged to have been paid as excess sales tax.
2. The appellant carries on business in the export of fresh fish from Goalundo in the district of Faridpur in East Pakistan to Calcutta in West Bengal. At the relevant time the method adopted for such exports under section 12 of the Foreign Exchange Regulation Act was that at the time of export the exporters had to give declarations in what were called I. R. P. X. Forms prescribed by the State Bank of Pakistan, giving the invoice value of the goods supported by export documents together with an undertaking to repatriate the export proceeds as assessed by the Customs Authorities of the country where from the goods were to be exported. The repatriation had to be done through an authorized dealer in foreign exchange, invariably a bank, through letters of credit transactions.
3. On the basis of the valuation so declared by the appellant the Land Customs Authorities, Goalundo, assessed sales tax at 12-- % of the "duty paid value" of the fish exported in accord--ance with the provisions of the Sea Customs Act as applicable to exports under the Land Customs Act, 1924. The appellant deposited the duty so assessed and exported the fish.
4. Subsequently, it is alleged, there was some hitch on account of the fact that the Indian Customs Authorities assessed the goods at a lower value and the Reserve Bank of India refused to permit the authorised dealers in India to repatriate the amounts of the value declared by the exporter.
5. When this difficulty was brought to the notice of the State Bank of Pakistan it issued a circular, being E. C. D. A. Circular No. 24, on the 13th June 1960, to authorise dealers in Pakistan, permitting them, in view of this difficulty, to accept letters of credit with the stipulation that payment would be made according to assessm ent by Indian Customs, but at the same time pointed out that; "as prices of fish at the Pakistan Customs Stations are 20 % less than those prevailing in the Indian market, it is expected that such cases of variation in prices may not be many". In any case, if there was such a variation made by the Indian Customs Authorities, documents were to be negotiated and proceeds realised "according to the terms of the letters of credit" and the cases reported immediately to the State Bank of Pakistan giving particulars of the I. R. P. X. Forms.
6. On the strength of this circular the appellant claimed a refund of Rs. 8,220 in respect of his exports for the period January to April 1961, from the Customs Authorities, but the Assistant Collector, Land Customs, Kushtia, rejected the claim on the ground that the value fixed by the Land Customs Officer, Goalundo, was the correct "duty paid value" in accordance with the provisions of section 30 of the Sea Customs Act and it was based on declarations contained in the export applications, invoices and other documents filed by the appellant himself. This order of the Assistant Collector was upheld in appeal, by the Collector of Central Excise and Land Customs, by his order of the 18th of January 1962. The appeal was rejected on the ground that the Sales Tax Act of 1951, did not authorise the Land Customs Officer to entertain refund applications. The proper officer empowered in this behalf was the Sales Tax Officer. Notwith--standing this, he passed an obiter observation to the effect that "the grievance of the appellant was not without foundation".
7. In the meantime, the Central Board of Revenue, Government of Pakistan, issued a Circular No. 15(2)-S. T.(I. T.) 2/61 on the 10th of January 1962, to the following effect: "I am directed to say that it has been decided by the Board that in the case of exporters of fresh fish from East Pakistan to West Bengal, the duty, paid value for the purposes of sec--tion 3(3)(ii) of the Sales Tax Act, 1951, should be deemed to be the sale price actually repatriated from West Bengal as certified by the State Bank of Pakistan unless there is clear evidence to show that sale price actually realised in India is higher than the exchange repatriated and duty paid value determined by Pakistan Customs. You are, therefore, requested to please take steps to see that applications under section 27 of the Sales Tax Act are entertained on this basis and any excess sales tax collected at the export stage by Pakistan Customs is refunded and in cases of the other type balance of sales tax due, if any, may please be recovered."
8. On the strength of this circular, the appellant on 7th April 1962, again filed four applications under section 27 (2) of the Sales Tax Act before the Sales Tax Officer, Faridpur, for refund of a total sum of Rs. 11,775. These somehow or other were not received in the office of the Sales Tax Officer until the 15th of January 1963, but these applications were ultimately filed on the 4th of May 1963, and the 10th of September 1963, respectively, without assigning any reason. Subsequently, when the appellant made further representations he was informed on the 12th of October 1963, that since the Board's Circular, dated the 10th of January 1962, bad already been superseded by the Board's subsequent Circulars, dated the 30th of April 1963, and the 29th of May 1963, therefore, the sales tax was payable on the actual "duty paid value" fixed by the Pakistan Customs Authorities under clause (ii) of subsection (3) of section 3 of the Sales Tax Act, 1951, and not on any notional valuation made by the Indian Customs Authorities or the Reserve Bank of India.
9. It was after this that the appellant came to the High Court, which took the view that since the Board's Circular of the 10th of January 1962, had been cancelled on the 17th of April 1963, before the Sales Tax Officer filed the first application for refund on the 4th of May 1963, there was no directive of the Central. Board of Revenue in existence to which effect could be given at that time. In this view of the matter, the High Court did not feel it necessary to go into the question as to how far a direction given by the Central Board of Revenue with regard to an interpretation of the provisions of the Sales Tax Act would bind the officers and persons employed in the execution of the Act under section 5(3) of the Sales Tax Act, 1951. The High Court also repelled the contention that "duty paid value" under section 3(3)(ii) of the Sales Tax Act could ever mean the value determined by the Customs Authorities or the Central Bank organization of the country to which the export was made.
10. On behalf of the appellant it is now contended that since the application for refund was made on the 7th April 1962, 10 days before the cancellation of the directive of the 10th of January 1962, the appellant had acquired a vested right to claim refund in accordance with the terms of that directive and its cancellation could not operate with retrospective effect.
11. This argument is, to our mind, entirely misconceived, for, it overlooks the fact that the sales tax that was payable on the goods was payable according to the law prevailing at the time of its export. If the "duty paid value" as then calculated was correctly calculated according to the law prevailing at that time, then no question of refund could at all arise, for, even assuming that the Board's directive of the 10th of January 1962, could have had the effect of altering the definition of "duty paid value" as given in the Sales Tax Act, it could not possibly have had retrospective effect so as to change the definition from the date of the exports between January and April 1961. It is entirely fallacious, therefore, for the appellant to argue that he acquired any right to any refund by virtue of the circular of the Central Board of Revenue issued on the 10th of January 1962. If it applied at all, it could apply only to exports made from and after the date of its issue and not before that date. The directive could not be given retrospective effect.
12. Apart from this question, we are also of the opinion that a directive issued by the Central Board of Revenue under subsec--tion (3) of section 5 of the Sales Tax Act could not change the provisions of the statute itself. This subsection itself ---contains proviso to the effect that such orders, instructions or directions shall not interfere with the discretion of the Appellate Assistant Commissioner of Sales Tax in the exercise of his functions. These directions must necessarily, therefore, be limited to administrative or executive directions and cannot possibly be construed to empower the Central Board of Revenue to give directions to Sales Tax Officers to act illegally or in contravention of the provisions of the statute.
13. An order passed by a Sales Tax Officer under section 27 of that Act is furthermore subject to appeal and revision in the same manner as an order of assessment passed under section 10 of that Act. Therefore, the directive of the Board of Revenue would not, by reason of the proviso appended to subsection (3), bind the Appellate Assistant Commissioner in the event of an appeal being filed against the order of the Sales Tax Officer. It is impossible, therefore, to accept the contention that directions issued under subsection (3) of section 5 of the Sales Tax Act would have the effect of altering the law.
14. So far as the law is concerned, sales tax is payable on all notified goods or classes of goods and fresh fish is admittedly one of such notified goods. Again by reason of the provisions of subsection
(3) of section 3 of the Sales Tax Act the value of the goods on which the tax is to be assessed is "the duty paid value". This value is defined in section 2(5) as "the value of the goods as determined under section 30 of the Sea Customs Act, 1878, or the tariff value as fixed in pursuance of subsection (2) of section 2 of the Tariff Act of 1934, and in addition the amount of customs duties levied thereon".
15. Under subsection (4) of section 30 of the Sea Customs Act the value of exported goods is to be as follows-.- "(4) Value of exported goods.-The value of any exported goods shall be taken to be the normal price, that is to say, the price which they would fetch, at the prescribed time on a sale in the open market for exportation to the country to which the goods are consigned between seller and buyer independent of each other. For the purposes of the foregoing provision, the expression `the prescribed time' shall mean the time when the shipping bill is delivered under section 137, or, when shipment of the goods is allowed without a shipping bill or in anticipation of the delivery of a shipping bill, the time when shipment of the goods commences."
16. Therefore, "the duty paid value" is the normal price, i. e. The price which the goods would fetch, at the prescribed time on a sale in the open market for exportation to the country to which the goods are consigned. Thus the price is the price at which the goods would be sold in the open market in the country from which they are to be exported. This does not and cannot refer to the price at which the goods would be sold in the country to which they are exported. It is quite likely that in a commercial venture the importer may sell the goods, as he invariably would do, at a profit but for the purposes of taxation by the country of export the determining price is the price at which the goods would be available in the open market at that time for the purposes of export to the country to which they are actually intended to be exported.
17. Learned counsel appearing in support of the appeal, however, finally sought to argue that this was not a case of an amendment of any provision of the Sales Tax Act but really the granting of an exemption under subsection (3) of section 7. This subsection reads as follows:- "The Board may, by special order in each case, exempt from the payment of the whole or any part of the tax under circum--stances of an exceptional nature to be stated in such order, any goods on which to tax is leviable."
18. It will be apparent from the wording of this exemption clause that what was done in the present case by the Board of Revenue was not to grant any exemption in any sense of that term, but was, in fact, an attempt to bring about an amendment of the definition of "duty paid value" itself as given in subsection (5) of section 2 of the Sales Tax Act. The Board, in the present case, did not pass any "special order" in any particular case in respect of the tax leviable on any goods but issued a general order regarding the "exporters of fresh fish from East Pakistan to West Bengal" for applying a different definition of "duty paid value" in their canes. This is not the same thing as granting an exemption.
19. For the reasons given above this appeal must, in our opinion, fail, but before we part with this appeal we must also point out that the petition under Article 98 of the late Constitution filed I the High Court by the appellant should have been rejected in limine on the ground that the appellant had not exhausted his remedies under the Sales Tax Act itself.
20. As already pointed out, from an order under section 27 of that Act an appeal and revision lay in the same manner as from an order of assessment under section 10 of the said Act. The appellant had not taken any one of these steps from the order of the Sales Tax Officer. He had not, therefore, exhausted the alternative remedies available under the law. The petition was also, in our view barred by laches, for, it was filed on the 16th of June 1964, to challenge orders passed by the Sales Tax Officer on the 4th of May 1963, and the 10th of September 1963. The appellant has tried to explain this delay in his petition by saying that he was, in the meantime, trying to meet the Secretary of the Central Board of Revenue, the Central Minister In-charge of the, Department and the appropriate Parliamentary Secretary, but there is nothing on the record to support these assertions.
21. We, accordingly, dismiss this appeal, but having regard to the fact that the appellant was misled by the Circular of the Board of Revenue, we make no order as to costs.