1. ' MUHAMMAD HUSSAIN ADIL KHATRI, J.--The petitioner had imported iron and steel scrap for which contract was entered into on 21-9-1987 and letter of credit was opened on 22-9-1987. The vessel m.v. Shaheen containing scrap arrived at Karachi Port on 12-11-1987. The petitioner filed Bill of Entry declaring its duty @ 51% per Metric Tons plus 12.5% Sales tax as leviable on the dates the import licence was obtained. Contract was made and letter of credit was opened. The petitioner had declared the duty payable at the above rate as under SRO 505(1)/86 dated 29-5-1986 issued under section 19 of the Customs Act, 1969 the goods falling under PCT Heads 73.06 to 73.40 (Re- rollable scrap) were exempted from duty in excess of 51% ad val. The Central Board of Revenue vide its notification No,SRO 1015(1)87 dated 30-12-1987 omitted from SRO No,505(1)86 the above entry pertaining to Re-rollable scrap and exemption of duty in excess of 51%. The aforesaid notification dated 30-12-1987 inserted in SRO PCT Heading 73.03 (Waste and Scrap metal of iron and steel)
2. (Shredded and bundled scrap only), exempting duty in respect thereof in excess of 20% ad val and omitted the headings 73.06 to 73.40 and the entries relating thereto, as a result thereof exemption granted for re-rollable scrap by SRO dated 29-5-1986 stood withdrawn. By yet another Notification No,1016(1)87 dated 30-12-1987 issued under section 18(2) of Customs Act,. 1969 further amendments were made in SRO No,547(1)/87 dated 1-7-1987 whereby changes were brought in the structure of regulatory duty.
3. ' In each of the above two notifications it was specifically stated that they shall take effect from 30- 12-1987. These Notifications were published in the Gazette dated 30-12-1987.
4. Mr. Khalid Anwar, the learned counsel for the Petitioner has firstly challenged the applicability of the said notifications to the imports on the ground that the withdrawal of the exemption does not and cannot in any manner detract I the vested rights which had already accrued to the Petitioner.
5. ' Secondly it is urged that the Customs Authorities are unjustifiably claiming that the scrap meant for rerolling falling under PCT Heading, 73.06 to 73.40 is to be subjected to Customs duty as standard goods of Iron and Steel at the relevant rates for the reason that the benefit of exemption of duty in excess of 51% has been taken away. It has been stated in the Petition that there is no change in the Sales-tax.
6. ' The first contention is based on the principle laid down by the Supreme Court in 1986. SCMR 1917 (A-Samrez Enterprise v. Federation of Pakistan). However the effect of the above judgment of the Supreme Court was nullified by Section 31-A inserted in the Customs Act, 1969 by Finance Ordinance, 1988 promulgated on 1-7-1988. The said section was made applicable retrospectively with the result that all such vested rights which the petitioner has acquired are taken away, as has been held in the case of Yaseen Sons v. Federation of Pakistan (PLD 1989 Kar. 361) wherein the Division Bench of this Court has taken the view that there can be no doubt that such retrospective legislation can be competently passed by legislature provided that it does not violate any Constitutional provision, and it was further held that such vested rights have been validly taken away by the said amendment. This view was re-affirmed by other Division Benches of this Court in C.P. No,D-1134/88 (Crescent Pak. Industries Limited v. Government of Pakistan), C.P. No,D-203/88 (M/s. Yaseen Sons v. Collector of Customs and others) and C.P. No, D-341/88 (M. Nasir Trading Corporation v. Federation of Pakistan and another). The last two cases were decided by a common judgment by the Bench of which one of us (Saleem Akhtar, J,) was a member . We, therefore, respectfully follow the said dicta.
7. ' On the second submission also the learned counsel of the Petitioner has referred to the unreported judgment in the aforesaid cited C.P. No,D-203/88 and C.P.No,D-341/88. Relying on the cases of EECO Agencies Ltd. v. Karachi Municipal Corporation (1987 SCMR 1642) and Radaka Corporation v. Collector of Customs (1989 SCMR 353) wherein the meaning of scrap and significance. Of the phrase "Waste and scrap metal of iron and steel" was considered and similar question raised in the said two petitions regarding classification under heading 73.03, 73.06 to 73.40 was resolved as under:- "8. Turning directly now to the effect of the current exemption on the classification of disputed items which could, arguably, be covered by P.C.T. Heading 73.06 to 73.40 as the Customs would like us to accept, we have, on the foregoing analysis, this to say: there can be no doubt whatsoever that a particular commodity or class of goods which fall under the same heading even though imported in a second hand or used condition. However, if such commodity is imported in a worn out, broken or shredded state and is incapable of being used, for a purpose other than that described under an heading such as 73.03 and also otherwise qualifies within such heading, it is in such P.C.T. Heading 73.06 to 73.40 cannot be used for any purpose other "Waste Scrap metal of Iron or Steel" the same may fall under the later heading and this conforms to the opinion expressed in the dicta cited above. However, as said elsewhere, the discretion of the Customs in such matters is a very limited one and they must in this behalf be guided by well-established principles duly documented in Brussels Nomenclature of CCCN, etc., as the case may be."
8. We follow the said dicta and answer the issue raised accordingly. In our opinion grant or withdrawal of exemption neither changes the nature of goods nor its classification and description.
9. ' The above are the reasons for the short order dated 3-12-1990 whereby we remanded the case to respondent No,3 for assessm ent and making final determination within a period of 60 days from the date of communication of this order. In the event the orders are adverse to the petitioner the bank guarantee rendered in these petitions would become encashable after a further period of one month of the recording of final assessment by respondent No,3.