1. ' SAIDUZZAMAN SIDDIQUI, J.--The petitioner has challenged in this petition the orders of respondents 1 to 3 dated 8-4-1980, 7-10-1980 and 23-12-1981 respectively.
2. ' The case of the petitioner is that they imported Complete Speed Frames Modernisation Equipment and High Drafting Conversion Equipment in unassembled form which also, included Aprons and Cots. The aforesaid machinery imported by the petitioner, it is claimed, was exempted totally from payment of custom duty as well as sales tax under two S.R.Os No, 695(1)/77 and 697 (1)/77 both dated 4-8-1977, issued under Section 19 of the Customs Act, and Section 7 of the Sales Tax Act respectively: However, on arrival of the consignment when the petitioner submitted Bills of Entry for their clearance, it is alleged, that they were directed by the Customs Authorities to indicate each item separately with relevant I.T.C. Classification in their Bills of Entry and accordingly they submitted Bills of Entry showing separately the classification as well as value of each item. It is an admitted position that the consignment was released to the petitioner by treating the same as falling under I.T.C. Heading No, 84.38 for the purpose of custom duty. However, for the purposes of sales tax, Aprons and Cots were treated by respondent No,1 as falling under I.T.C. Heading No, 40.14 and accordingly sales tax was demanded on them from the petitioner. The petitioner feeling aggrieved by the said demand, unsuccessfully challenged the same before respondents Nos.2 and 3 and finally filed the above petition.
3. ' Mr. Zaheer Ahmed Khan, the learned counsel for the petitioner contended before us that Aprons and Cots when imported as component of a complete machinery are exempted from payment of Custom Duty and Sales Tax under S.R.Os. 695 (1)/77 and 697(1)/77 respectively though they may not be entitled to such exemption when imported separately. It is contended by the learned counsel that the petitioner had imported Aprons and Cots as part of the complete machinery and this fact was admitted by the Custom Authorities when they released the whole consignment including the Aprons and Cots without charging any custom duty thereon after classifying the same under P.C.T.Heading No,84.38. However, while considering exemption from payment of sales tax on same consignment the Custom Authorities treated Aprons and Cots as falling under different classification, namely, Heading No 40.14: It is accordingly contended by the learned counsel that the Custom Authorities could not treat the same consignment differently for the purpose of assessm ent of custom duty and sales tax when the items mentioned in the two notification are same.
4. ' Mr. Syed Inayat Ali, the learned counsel for the Department, on the other hand, contended that Cots and Aprons having been specifically excluded from exemption in both the notifications, the Custom Department rightly demanded the sales tax thereon. It is true that Cots and Aprons are excluded from exemption of custom duty and sales tax if they are imported separately but in the case before us the petitioner had imported the consignment including Aprons and Cots as one complete machinery and this fact was admitted by Custom Authorities who had allowed clearance of the above consignment without payment of custom duty after classifying it under heading No,84.38. There is no explanation available in the orders of respondents for classifying the same consignment under different heading of PCT for the purposes of custom duty and sales tax.
5. As the Custom Authorities had treated the entire consignment entitled for exemption from custom duty under S.R.O.695(1)/77 as one complete unit by classifying it under I T.C.Heading No,84.38, there was hardly any reason for not treating it under the same heading for the purpose of exemption from payment of sales tax when the two notifications are identically worded.
6. ' We accordingly accept the petition and declare the orders of respondents 1 to 3 as having been passed without lawful authority and of no legal effect. The respondents are directed to refund the sales tax recovered by them from the petitioner on the aforesaid consignment. There will, however, be no order as to costs