AJMAL MIAN, By this common order we intend to dispose of the three Miscellaneous Applications, whereby the petitioners have sought the release of the imported consignment comprises of shredded scraps of iron on payment of customs duty at the rate of Rs. 418 per metric ton in place of ad valorem customs duty at the rate of 20% and sales tax 12- 1/2% in terms of Notification dated 30th December, 1987.
2. Mr. Rashed Akhund in support of the above applications has raised two-fold contentions namely that in view of the ratio decidendi of the Supreme Court case namely A1 Samraz (now reported in PTCL 1987 CL 99), the aforesaid Notification cannot be made applicable retrospectively in respect of the transactions in respect of which definite commitments in the form of inter alia L/C were opened prior to the Notification and, secondly, the impugned Notification purports to modify item No. 73.03 of the First Schedule to Customs Act. He has further submitted that in Constitutional Petitions Nos. D-23 of 1988 and 73 of 1988 another Division Bench of this Court in identical cases by orders dated 21st January, 1988 and It, February, 1988 have allowed the release on payment of customs duty at the rate of Rs. 418 per metric ton without asking for a bank guarantee or other security for the disputed amount.
3. On the other had Mr. Imam Ali Kazi, learned Deputy Attorney-General has submitted that in a number of other cases the bank guarantees have been furnished by the petitioners for the disputed amount and the above orders do not constitute precedent for the purpose of binding the same on this Division Bench.
4. It is true that in number of cases where the ratio decidendi of Al-Samraz case has been pressed into service, this Court has been consistently ordering furnishing of bank guarantee with 14% mark up. However, Mr. Rashed Akhund has vehemently submitted that in the cases of shredded scrap which are covered by above two orders, no bank guarantee has been asked for. He has also submitted that the Court should pass consistent orders in identical cases.
5. We cannot say as to why in the above two cases the bank guarantee or any other security was not asked for but the fact remains that the goods were allowed to be released on payment of customs duty at the rate of Rs. 418 per metric ton.
6. In or view, the proper and just order would be to allow the release of the goods on payment of customs duty at the above rate and on furnishing an Insurance Guarantee with 14% mark up to the satisfaction of respondent No. 1 of an approved Insurance Company.