ABDUL QADEER CHAUDHRY, J.--1. The petitioner was allowed to establish a guar gum manufacturing plant by the Government in Mouza Beroot, Hub Chowki, District Lasbela, Province of Baluchistan, a duty free area which was exempted under section 19 of the Customs Act, 1969 by the Government of Pakistan, vide Notification, dated 26-6-1980 which contemplates that the Province of Baluchistan shall be exempted from the customs duties leviable thereon under the First Schedule to the said Act. The petitioner cleared the machinery on 14-3-1983 and when he filed the bill of entry the Collector of Customs imposed 5% additional duty vide Ordinance No. XII of 1982, dated 14-6-1982.
The petitioner approached the authorities with the request that additional duty is not chargeable as his machinery was exempted under section 19 of the Customs Act but his contention was 'ejected by the authorities, hence the present petition.
2. It is the case of the petitioner that the additional duty on the goods and machinery which are totally exempted from customs duty cannot be imposed and realised, as the additional duty can only be claimed on those goods which are assessable under the Customs Act but as the petitioner's machinery was exempted for the payment of customs duty the Ordinance No. XIV of 1983 does not apply to the case of the petitioner. The Ordinance came into force on the first day of July, 1982 and according to section 2(1) there shall be levied and collected an additional customs duty as surcharge on the importation of the goods specified in the First Schedule to the Customs Act, 1969 at the rate of 5% of the value of the said goods as determined under section 25 of the said Act.
3. The learned Deputy Attorney-General on the other hand contends that the additional customs duty was validly imposed under the law irrespective of the fact that no customs duty was leviable on the machinery imported by the petitioner for installation in the Province of Baluchistan, He has referred to Finance Ordinance XIV of 1983. Section 6 of this Ordinance reads as follows: "In the Finance Ordinance, 1982 (XII of 1982), in section 2, in sub-section (2), after the brackets and figure '(i)' at the end, the commas, words, brackets and figure ', and no exemption from payment of customs duty under the Customs Act, 1969 (IV of 1969), or any other, law for the time being in force shall be deemed to apply to the additional customs duty leviable under the said sub-section' shall be added and shall be deemed always to have been so added'.
The amendment of sub-section (2) of the Finance Ordinance, 1982, makes it clear that the additional customs duty is leviable on the machinery of the petitioners in spite of the fact that no payment of customs duty under the l Customs Act shall be paid by the petitioner. The language of the sub-section is quite clear. There is no ambiguity in it. It applies with retrospective effect. The machinery of the petitioner was cleared on 14-3-1983, therefore, this amendment applies by fiction of law. The learned Deputy Attorney-General has referred to the case of Commissioner of Sales Tax, Karachi Vs. Messrs Neon Signs (Pak.) LTd., Karachi reported in 1974 PTD 162. In this case the amendment was made in section 28 of the Sales Tax Act by the Finance Act, 1964 by which sub- section (2) was added to section 28 and this addition was provided to take, effect from the 31st day of March, 1933 and it was held that the Court has to give full effect to this amendment because the statute requires it to do so.
Similar view was taken by the Supreme Court in the case of Commissioner of Sales Tax (West), Karachi Vs. Kruddsons Limited reported in PLD 1974 S.C.
180. In this case also the provision inserted in the Finance Act of 1967 was given retrospective effect by the Finance Act, 1968. The question for determination before the Supreme Court was as to whether this enactment extended to the appeal pending before the Supreme Court. It was held that the pendency of the certified appeal in the Supreme Court had destroyed the finality of the High Court's order and, therefore, was hit by the new dispensation in section 30-A of the Act.
4. In view of the clear position of law we are of the opinion that the petitioner's machinery was not exempted from additional customs duty and, therefore, it was legally recoverable from him. The petition has no force and the same stands dismissed.
5. By our short order we had dismissed the petition, and the above are the reasons for the same.