1. ' SALEEM AKHTAR, J.---The petitioner was granted six import licences for import of manmade textile fibre during 4-12-1985 and 22-4-1986. The petitioner established irrevocable letters of credit during 11-1-1986 and 16-2-1986. On 30-4.1986 the Federal Government issued SRO 430(1)/86 dated 30-4- 1986 amending SRO 645(1)/85 dated 1-7.1985 whereby regulatory duty at the rate of Rs,5 per Kg.
2. Was levied on viscos fibre. Respondent No,1 issued a demand note dated 25-5-1986 alleging that by notification dated 30-4-1986 regulatory duty of Rs,5 per Kg. On visco fibre has been levied with effect from 30-4-1986. Three consignments of the petitioner are alleged to have been cleared on 30th April, 1986, 4-5-1986 and 6-5-1986. Respondent No,1 demanded Rs,1,89,024.40 'as regulatory duty. The petitioner replied this letter on 8-7-1986 contending that the demand of regulatory duty raised by respondent No,1 is in flagrant violation of section 32(3) and (4) of the Customs Act, 1969, and the same has been raised without issuing any show-cause notice and without considering representation of the parties and thus it is wholly illegal, invalid and inoperative. It has been stated that all the arrangements for import of goods covered by import licences and letter of credit were made prior to 30-4-1986 but when these goods arrived respondent No,2 realised regulatory duty amounting to Rs,11,85,520 despite the protest made by the petitioner. This amount was deposited by the petitioner under protest as respondent No,2 did not allow clearance without deposit of the aforesaid amount. The petitioner has challenged the levy and realization as vested right had been created in its favour and could not be taken away by a subordinate legislation and notification.
3. ' Mr. Zaheer Ahmad Khan, the learned counsel for the petitioner has contended that regulatory duty is imposed by section 18, subsection (2) of the Customs Act which is in addition to the Customs duty levied under section 18(1) and as section 18(2) is self-sufficient for levy, fixing the rate and the period of validity the provision of section 30 is not attracted. In this view of the matter it has been contended that if section 30 is not attracted, section 31-A will not apply and therefore, the levy is illegal. The basis for such construction of section 31-A is that it prescribes a method for calculating the rate of duty for purposes of sections 30 and 31. According to section 31-A the rate of duty applicable to any goods will include duty imposed under section 18 of the Customs Act, section 2 of the Finance Ordinance, section 5 of the Finance Act, 1985 and other duties mentioned therein or exemption which has been withdrawn. Therefore, the method of calculating the effective rate of duty is provided under section 31-A for the purposes of section 30. According to section 30 the value and the rate of duty applicable to any imported goods shall be the value and the rate of duty imposed in case of goods cleared for home consumption on the date of presentation of the bill of entry and in case of goods cleared from the warehouse under section 104 on the date when the bill of entry for clearance of such goods is presented. Therefore, in order to quantify the duty applicable on a particular goods one ,has to resort to section 30 for calculating the same. Section 18 subsection (1) prescribes the customs duty, levied at a rate prescribed in the-First and Second Schedules or under any other law for the time being in force on the goods imported or exported from Pakistan. Section 18(2) empowers the Federal Government by notification in the official Gazette to levy subject to such conditions provided in it to impose any duty on any of the articles specified in the First Schedule at the rate not exceeding 50% of the value of articles as determined under section 25. By Finance Act 1981 the rate has been increased not exceeding 100%. This duty will be in addition to the customs duty and shall be levied on and from the day specified in the notification irrespective of the date when it was published. The maximum life of the notification will be till the expiry of the financial year in which it was issued unless rescinded earlier. According to Mr.Zaheer Ahmad Khan in the scheme of the Act, sections 18, 19, 30, 31 and 31-A taken together make it clear that the regulatory duty imposed under section 18(2) stands on different footing from the customs duty and is to be calculated, realized and enforced within the framework of section 18(2) and resort has not to be made to section 30. In calculating the customs duty one has to first look to the charging section and then calculate the value and rate of duty with reference to the date on which duty is leviable. The date for levy of duty differs in cases where clearance of goods is required for home consumption and cases where goods are first warhead Used and clearance for home consumption is made at a later date. At times variation of date in taking delivery may result in variation of rate of'duty and therefore, in every case where assessment of duty has to be made one has to fall back upon section 30.
4. ' Mr.Zahcer Ahmad Khan, has contended that as the regulatory duty levied is on the basis of weight and not value of the goods, while quantifying it reference is not to be made to section 30 and therefore, section 31-A will not apply. The applicability of section 30 is not restricted to section 18(2).
5. It applies to all duties including Customs duty, regulatory duty and any other duty levied under any other law. Therefore even if regulatory duty is charged on basis of weight resort will have to be made to section 30 for determining the value and rate of all other duties. Section 30 cannot be by- passed in any such event.
6. ' According to Mr.Zaheer Ahmad Khan as in section 31-A the amount of duty imposed under section 18 only refers to section 18(1) where a specific rate has been prescribed and does not speak of section (2) by which regulatory has been imposed. The fact that section 18. Has been mentioned without mentioning any subsection means that the entire section 18 is covered by it and any duty imposed whether it is customs duty or regulatory or any other duty prescribed by any other law shall be covered.
7. Mr.Shahani the learned counsel for the respondents has relied on PLD 1984 Kar. 361 and 1989 CLC 1475 to contend that section 31-A has been made applicable with retrospective effect and therefore all imports prior to the issue of notification will be covered by it. Section 31-A has been enacted to offset the effect of AI-Samraz's case, the levy of duty on goods in respect of which letter of credit has been opened before the notification has been made legal. For these reasons we do not find any force in the petition which is dismissed.