1. ' HAIDER ALI PIRZADA, J.--We intend to dispose of these petitions by common judgment as the points of law involved is the same. These petitions raise the question of the validity of the Notifications dated 31-8-1967, 25-4-1966, 31-4-1967, 31-3-1973 and 7-6-1973.
2. ' Writ Petition No. 425 of 1968.-- The petitioner is a Public Limited Company incorporated in Pakistan under the Companies Act, 1913. The petitioner is a duly registered Importer under the Import and Export (Control) Act, 1950. By Public Notice No. 36(66) Importer dated 25-4-1968 issued by the respondent No. 2 and published in the official Gazette, it was notified that importers would be required to pay in addition to the C.I.F. value, bank charges, inspection fee, etc. an amount on account of "price differential" calculated on the basis of the average landed cost for import during the last twelve months. By a public Notice No.62 (66)/Importer, published on 19-8-1966 by the respondent No. 2 the price differential of mild steel sheet was determined at the rate of Rs. 271 per long ton for East and West Pakistan. The said figure was to represent the differential "between the average landed cost on the basis of average of priCe check certificates issued by the Controllers.
3. On 5-6-1967 the Import of Goods (Price Equalisation Surcharge) Act, (III of 1967) came into force by another notification dated 31-8-1967 issued under section 2 read with section 3 of the said Act, the Central. Government included mild steel sheets in the list of specified goods subject to levy of price equalisation surcharge. By another notification issued under section 4 (1) of the said Act the Central Government determined the highest rate of landed cost for mild steel sheets for any period after 22-6-1966 at Rs. 1,279 per long ton.
4. ' The petitioner had imported mild steel sheets in the quantities and on the dates shown in the table below. The table also shows the amount of price equalisation surcharge which has been recover from the petitioner. {{TABLE}} Sr. Pad Shipment Arrival Ship Origin Quan- Differen- No. No. Date. Date tity tial Equa- lisation Surcharge paid in Rs.
1. 6498 31-8-1967 11-12-1967 Bernhard Luxem- 1023 2,77,289.00 Bastelein . bourg . L/T
2. 4178 24-11-1967 5-2-1967 Learwern Germany 579.02 L/T 1,56,914.42
3. 4212 28-12-1967 23-2-1968 Ockenfels 2G82.72 L/T 5,64,417.12
4. 4190 8-12-1967 10-2-1968 Orootekerk 483.63 1,30,792.73 L/T
5. 4211 18-12-1967 14-3-1968 Chittagong 768.32 L/T 2,08,214.72 Total 13,37,635 {{TABLE}} ' The petitioner imported a consignment of 748.37 Long tons mild steel sheets from Antwerp, Natherlands which arrived in Karachi on 23-8-1968. The petitioner wanted to furnish bank guarantee but the respondent No. 1 refused to accept Bank Guarantee. Subsequently the Consignment was released on furnishing the Bank Guarantee.
5. ' Constitution Petition No.673 of 1973.--The petitioner imported from the United States of America 266 bundles containing 824,077 Lbs. or 373.9 Metric tons of aluminium ingots of the value of Rs.18,21,700. The petitioner submitted Bill of Entry in respect of these goods to the respondent No.
2. The appraising officer required the petitioner to put up the statement of actual landed cost of the said goods and determined price equalisation surcharge on the basis of Rs. 7,072 per metric ton being the landed cost in pursuance of Notification No. S.R.O. 479 (1)/73, dated 31-3-1973. The petitioner furnished the Bank Guarantee, and on furnishing the Bank Guarantee the goods were released.
6. ' Constitution Petition No. 777 of 1973.-- The petitioner imported from the United States of America 71 bundles containing 158,599 Lbs. or 71.93 Metric tons of aluminium ingots of the value of Rs. 3,53,993.
7. The petitioner submitted Bill of Entry on 6-6-1973. The appraising officer required the petitioner to put up the statement of actual landed costs of the said goods and determined the amount chargeable as price equalisation surcharge on the basis of Rs. 5,872 per Metric ton on the basis of notification dated 7-5-1973.
8. ' The petitioners challenged these notifications as illegal and without jurisdiction. The petitioners also challenged the purported determination of price equalisation surcharges on the ground that they were in violation of the provisions of the Act.
9. ' The respondent No. 2 filed counter-affidavit and objections in the aforesaid petitions and denied the various allegations made therein. It is averred that under section 3 of the said Act an additional duty as price equalisation surcharge is to be levied at a rate by which the rate of landed Cost of such goods falls short of the highest rate SRO 163 and 164 of 31-4-1967, SRO 470, dated 31-3-1973 and SRO 7-6-1973 fixed the highest rate of landed costs of mild steel sheet and aluminium ingots.
10. The price equalisation surcharge was calculated on the basis of highest rate of landed costs fixed in the aforesaid S.R.Os. and the actual landed cost determined by the respondent No.2 on the basis of the shipping documents and invoices of different importers in the previous 12 months and the average of such cost was determined as the highest rate of landed costs. It is averred that certain goods are imported from aid given 'countries like Japan, Korea, USSR where the price of the same goods are lower. In order to strike a balance in the trade and commerce of the country the said Act was passed. It is also averred that the highest rate of landed cost is determined on the basis of documentary evidence and is not fixed arbitrarily. It was submitted that the petitioners are not entitled to any of the relief. It may be observed that during the pendency of the above cases, a consent order was passed by a Division Bench of this court on 29-8-1973 in Const: Petition D-152 of 1968 which reads as under:- "29th August, 1979 Mr.Khalid Anwar, Advocate Mr.Shah Jamil Alam, Deputy Attorney-General.
11. Both Mr.Khalid Anwar and the learned Deputy Attorney-General state that for deciding these petitions it is very essential that the record of the consignment on the basis of which highest landed costs was fixed by the Ministry of Commerce be summoned. In view of the joint request rightly made by the learned counsel we direct the respondent No.3 Ministry of Commerce Government of Pakistan to produce the record of the consignment on the basis of which the impugned demands were made from the petitioners. In case the respondent No.3 fails to produce the record before the next date there existed no record in support of its impugned demands made from the petitioners. Copy of this order be supplied to the learned Deputy Attorney-General adjourned to a date in office after one month."
12. ' These two petitions No. D-673 and 777 of 1973 alongwith other petitions were tagged to Constitutional Petition No. D-152 of 1968.
13. ' Constitutional Petition No. D-152 of 1968 was allowed by us on 27-10-1983 and we held as follows:- "In the instant case as the contentions of the petitioners inter alia was that there existed no basis on which S.R.O. was issued to produce any record to indicate the basis, the above petitions are to be decided on the assumption that there existed no record in support of the above demand. In this view of the matter the petitioners are entitled to succeed on the above ground."
14. ' The above consent order passed in Constitutional 'Petition No. D-152 of 1968 cannot be pressed into service in the instant petitions, as there was no such consent order passed therein. On the contrary the respondents have averred that highest landed costs were fixed as the materials disclosed in the counter-affidavits. Furthermore in Constitutional Petition No. D-673 and 777 of 1977 even it has not been averred that the highest landed costs were fixed without any basis/data.
15. ' Mr. Mohsin Tayyab Ali, the learned counsel for the petitioners moved amendment applications in the above petitions (D-673 and 777 of 1973). By order dated 17-4-1984 we declined to grant those application, and dismissed as they have been filed after the expiry of six years of the filing of the above petitions till the date of order dated 29-8-1979.
16. ' In view of the above Mr.Mohsin Tayyab All the learned counsel for the petitioners has contended that the petitioners have raised a number of legal points but for the purpose of these petitions, it will suffice to argue that Public Notification No. S.R.O. 470 (1)/73, dated 2-3-1973 and Public Notification dated 7-6-1973 are beyond the scope of section 3 of the Act.
17. ' Mr. Khalid Anwar the learned counsel for the petitioner in Constitutional Petition No.425 of 1968 has contended that notification dated 31-8-1967 is beyond the scope of section 3 of the Act and it transgresses limits prescribed by section 4 of the Act.
18. ' As against the above the learned Deputy Attorney-General has submitted that the Notifications do not change the essential structure of the policy embodied in section 4(1) of the Act. According to counsel shipping period as defined in section 2(d) means a period beginning on the first day of January and ending on the 30th June, or a period beginning on the first day of July ending on 31st day of December, each year or such other period as the Central Government may, from time to time by notifications in the official Gazettes declare to be a shipping period for the purpose of this Act. According to the learned Deputy Attorney-General the policy under section 4(1) is that the Federal Government has to declare the highest landed costs for such other period and as it may deem the highest landed costs for any period as such it has determined shipping period after 22- 4-1966.
19. 'We are inclined to hold that the notifications do not transgress the limits which circumscribe the scope and exercise of the powers -conferred by section 3 of the Act. The notificatipns do not go beyondA the scope of section 3 of the Act. It has been provided under section 4(1) that Federal Government shall determined by notifications in official. Gazettes declare the highest rate of landed costs of such goods.
20. ' The expression "highest rate" is defined in section 2(a) of the said Act and in relation to any specified goods imported in any shipping period, means the highest rate of landed cost declared in relation to such goods under subsection (1) of section 4. Section 2(a) defines the expression "landed costs" which in relation to any specified goods, means the aggregate of the C.I.F. value, duties, taxes, fees and others charges payable on or for the import of such goods in Pakistan. The word "Price Equalisation Surcharge" is defined as the, additional duty levied under section 3.
21. Subsection (b) of section 2 defined shipping period as period beginning on the Ist day of January and ending on 30th day of June, or a period beginning on the first day of July and ending on 31st December, each year or such other period as the Central Government may from time to time, by notification in official Gazette, declare to be a shipping period for the purpose of the Act. Section 3 is the charging section and provides that there shall be levied on the specified goods whose rate of landed costs is lower than the highest rate. Te above equalisation charge was to be difference between the rate of the petitioners' landed costs and the highest landed costs determined by the Central Government under section 4. Section 4(1) provides that the Central Government shall determine by notification in the official Gazette and declare in relation to every specified goods imported in any shipping period the highest rate of the landed costs on such goods. Subsection (2) lays down that for the purpose of determining the highest rate, every importer of specified goods shall furnish at such time such papers, documents or information relating to the import of such goods, as the Central Government may direct. Subsection (3) provides that whoever fails or neglects to comply with any direction under subsection 2 shall be deemed to have contravened the provisions of the Import and Export (Control) Act, 1950 and shall be punishable under section 5 of that Act. It may further be noticed that section 5 provides the procedure for collection of price equalisation surcharge which was to be collected in the same manner as import duty.
22. ' It is contended that the notifications issued by Central Govern ment should be held outside the scope of section 4 of the Act. In other words, the petitioners have contended that having regard to the scheme of the Act, it was necessary for us to read section 4(1) of the Act as not delegating the power to the Central Government to determine the highest rate of landed cost of such specified goods in any shipping period. The above argument is no doubt quite attractive but we do not find any substance in it since it overlooks the definition of the words shipping period in the Act. Section'
23. 3 envisages that there shall be levied on the specified goods imported in any shipping period into Pakistan after the 22nd day of April 1966, or if the Central Government in respect of any specified goods by order so directs after such dates as may be specified therein, whose rate of landed cost is lower than the highest rate, an additional duty as price equalisation surcharge at the rate by which the rate of the landed cost on such goods falls short of the highest costs.
24. ' The learned counsel for the petitioners have vehemently urged that in order to press into service section 3 of the Act, it is necessary that respondent No.3 should have some material to indicate that M.S.Sheets, M. S. Plates and Aluminium ingots were imported at a landed cost more than the petitioner's landed cost. It is not alleged by the petitioners that their landed cost was the highest.
25. The petitioners cannot therefore, complain that the determination of price equalisation by the Central Government was not in accordance with the provisions of the Act. We do not think that the determination of the highest landed cost and declaration of the same through Notifications in official Gazette are in anyway beyond the scope of section 4(1) of the Act. The impugned notifications cannot therefore be treated as those issued against the policy of the statute.
26. ' In view of the foregoing, we hold that the Notifications issued under section 4(1). are not ultra vires.
27. 'We may at this stage refer to one other subsidiary argument urged on behalf of the petitioners. It is argued that the price equalisation surcharge and the price differential are different kinds of levies.
28. There is no merit in this contention also because by section 7 of the Act theD levy was validated.
29. The two sections together form integral parts of a single enactment, the object of which is to levy an additional duty for equalisation of prices of certain imported good at different prices under different conditions and from different countries. In this view, the impugned notifications are intra vires and not open to challenge.
30. ' For the aforesaid reasons, the petitions fails and these are dismissed. The parties will bear their own costs.