' This judgment will dispose of Writ Petitions Nos.309 of 1990 and Writ Petitions Nos.331, 356, 379, 380, 381, 421, 423, 454, 455, 457, 458, 459, 460, 461, 473, 484, 488, 528, 577, 598, 599, 600, 601, 620, 625, 626, 656, 667, 668, 669, 670, 671, 719, 749, 751, 752, 753, 756, 757, 802, 816, 830, 831, 833, 844, 846, 877, 884, 888, 891, 908, 909, 910, 923, 925, 926, 927, 945, 953, 954, 958, 959, 964, 966, 1000, 1001, 1004, 1005, 1033, 1034, 1038, 1047, 1061, 1063, 1096, 1097, 1164, 1189, 1237 of 1990, 36, 38, 41, 44, 46, 47, 76, 99, 101, 128, 182, 183, 210, 211, 254, 293, 294, 295, 321, 357, 361, 367, 368, 383, 433, 434, 477, 496, 495, 518, 573, 575, 609, 617, 630, 662, 686, 781, 782, 783, 784, 785, 796, 798, 800, 801, 802 of 1991, 860, 861, 865, 939, 941, 859, 879, 977, 1004, 1030, 972/1991, 822, 971, 911, 976, 1044, 1045 of 1991 as common questions of law and facts are involved in the same.
2. The petitioner has assailed the validity of regulatory duty levied by the Federal Government at the rate of Rs,5 per K.G. On the imported goods. In the alternative, it has been prayed that the duty imposed has been exempted by virtue of S.R.O. No,505(1)/88 as amended subsequently.
3. The petitioner is a public limited company duly registered under the law and is engaged in the business of manufacturing and processing of goods made by artificial fibre (man-made fibre) which is imported from different countries. The petitioner imported Viscose Staple Fibre and filed bill of entry before the Collector Customs. The functionaries working under the Collector raised demands of different Customs duties as well as regulatory duty at the rate of Rs,5 per K.G. The petitioner is said to have paid the Customs duty but challenged the levy of the regulatory duty through the present petition.
4. The learned counsel for the petitioner as well as the learned counsel in the connected petitions have raised the following points:--
(i) The imposition of the regulatory duty is illegal, unjust and unreasonable because on the one hand the Federal Government has granted exemption in respect of Customs duties and on the other imposed additional duty in the shape of regulatory duty. Reliance was placed in case of Ittfaq Foundry v. Federation of Pakistan (PLD 1990 Lah. 121).
(ii) The regulatory duty is a Customs duty and the exemption granted by virtue of SRO 505(1)/88, dated 26-6-1988 as amended by SRO No,639(1)/89. Dated 17-6-1989 is applicable to it as well.
' Originally 40% ad valorem Customs duty was specified in respect of imported goods included in the First Schedule of the Customs Act. However, subsequently a fixed amount of Rs,15 per K.G. Was prescribed by the above referred SROs. And the Customs duty in excess of Rs,15 per K.G. Stood exempted. In this connection they placed reliance on Nawab Brothers v. Collector of Customs, Karachi and another (PLD 1977 Kar. 947).
(iii) The subsequent amendment made in SRO 505(1)/88, dated 26-6-1968 itself shows that originally the exemption granted was not relatable to the levies under subsection (1) of section 18 only.
(iv) The exemption granted under section 18 of the Customs Act is equally applicable to the duties levied under subsection (1) of section 18 and regulatory duty imposed under subsection (2) of the said section. In similar circumstances, the Central Board of Revenue had issued Letter No,1(97)/Original/83, dated 16-1-1984 and since then the department has been consistently following the practice of allowing exemptions in respect of amounts of levies under section 18.
Hence the departmental practice even if erroneous, should not be disturbed. In this connection reliance is placed on Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453) and Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353).
(v) There is no notification holding the field in respect of the year 1991-92, hence the goods imported during the said period cannot be subjected to payment of regulatory duty.
' On the other hand Mr. Mumtaz Ali Mirza learned Standing Counsel urged that the regulatory duty was validly levied by the Federal Government by virtue of provisions of subsection (2) of section 18 of the Customs Act and was not unreasonable. As regards the exemption claimed by the petitioner, he submits that the exemption granted by virtue of SRO 505(1)188 as amended by SRO 639(1) of 1989 is purely relatable to the Customs duties levied under subsection (1) of section 18 of the Act and has no nexus with the regulatory duty imposed under section 18(2) of the Act. In this connection, he has referred to the precise language used in the above-referred SROs. Which speak of Customs duties and the First Schedule to the Act which has relevancy to the Customs duties imposed under section 18(1) of the Act. He further submits that there was no departmental practice to allow exemptions in respect of regulatory duty because the Government has been imposing the regulatory duty and the department consistently demanding the said duty from the petitioner. As regards the letter of Cental Board of Revenue (CBR CI (97) Machinery/83 dated 16-1-1984, he submits that it might have been issued rightly or wrongly in respect of the exemptions granted earlier but it has no bearing in respect of the recent exemptions which are cleary relatable to Customs duties imposed under subsection (1) of section 18 of the Act. Meeting the objection that there was no notification holding the field levying regulatory duty for the year 1991-92, he has placed on the record Notification C.N.6/1991- C.B., dated 1st July, 1991 and urged with reference to provisions of subsection (3) of section 18 that the duty could be recovered from the date of the issue of the notification. He was not sure whether the notification was actually published in the official Gazette or not. He undertook that he would verify the correct position and inform the Court accordingly. After the judgment was reserved, the learned Standing Counsel placed on the record Notification No,S.R.O.(1)/91, dated 1st July, 1991, published in the Gazette on 3rd July, 1991.
5. By virtue of the provisions of subsection (1) of section 18 of the Act, the Legislature is competent to levy Customs duties at such rates as are prescribed in the First Schedule and the Second Schedule or under any other law for the time being in force. The Federal Government is empowered by virtue of subsection (2) of section 18 of the Act to levy a regulatory duty on all or any of the articles specified in the First Schedule at a rate not exceeding hundred per cent. Of the rate, if any, specified therein. Subsection (3) of the Act makes it clear that the regulatory duty levied under subsection (2) shall be in addition to any duty imposed under subsection (1) or under any other law for the time being in force and be leviable on and from the day specified in the Notification issued under that subsection, notwithstanding the fact that the issue of the official Gazette in which such Notification appears is published at any time after the day. A bare reading of subsection (2) of section 18 of the Act makes it clear that the regulatory duty is distinct from and in addition to the Customs duties leviable under subsection (1) of section 18 of the Act. Regulatory duty can be imposed by the Federal Government annually subject to such conditions, limitations or restrictions as it deems fit. Thus, the law had given a vast discretion to the Government in the matter. The regulatory duty cannot exceed 100 per cent. Of the rate specified in respect of the Customs duties levied under the First Schedule. The Government appears to have acted justly and fairly in exercising the discretion by imposing regulatory duty to the extent of only one-third of the maximum permissible limit. The mere fact that the Government had granted partial or total exemption in respect of Customs duties levied under subsection (1) of section 18 of the Act on different goods, was hardly sufficient to dub the imposition of regulatory duty as unjust or unreasonable. The matter entirely rested on the discretion of the Government and there is nothing to show that the discretion was exercised in an arbitrary or perverse manner. Hence, the judgment in the case of Ittfaq Foundry, relied upon by the petitioners' learned counsel is of no help to them.
6. Coming to the question as to whether the exemptions granted by virtue of SRO No,505(1)/88, dated 26-8-1988 as amended by SRO No,639(1)/89, dated 17-6-1989, cover the regulatory duty as well, the contents of the said Notifications should be seen first. The said SRO reads as under:- "In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969), and in supersession of this Ministry's Notification No,SRO 505(1)/86, dated the 29th May, 1986, the Federal Government is pleased to direct that the goods specified in column (2) of the table below and falling within the heading/sub-heading numbers of the First Schedule to the said Act specified in column (1) of the said table shall be exempt from so much of the Customs duties chargeable thereon as are in excess of the rate of duty specified in column (3) of that table."
It may be mentioned that the regulatory duty pertaining to the year 1989-90 was imposed by virtue of SRO No,679(1)/89, dated 29-6-1989. Number of Customs duties on various goods were already holding the filed. The authority allowing exemptions was fully conscious of the fact that two kinds of levies, one, the Customs duties under subsection (1) of section 18 and the other, regulatory duty under subsection (2) of the section 18 of the Act were holding the field. Therefore, if the authority intended to grant exemptions in respect of the Customs duties, as well as the regulatory duty, it could have conveniently said so in SRO 505(1)/88 as amended subsequently. However, the said SRO had merely granted exemption in respect of the Customs duties levied on goods falling within the heading/sub-heading numbers of the First Schedule to the Customs Act (and specified in column No,2 of the table of the SRO). It makes a pointed reference to the "Customs duties" chargeable on the said goods. Admittedly the First Schedule to the Act embodied the Customs duties imposed under subsection (1) of section 18 of the Act and had nothing to do with the regulatory duty imposed under subsection (2) of section 18.
7. In the case of Sohail Jute Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance and others (PLD 1991 SC 329) an argument was raised that the exemption granted under section 19 of the Customs Act was so general and extensive that it would be available, subject to the notified conditions, limitations and/or restrictions, to the Customs duties of both categories, the one leviable under the Customs Act and the other under the law for the time being in force. The said contention was repelled for three reasons, one of which was that the very words of the notification allowed exemption by a reference to goods and the duties mentioned in the First Schedule to the Customs Act. It was emphasized: "Nothing more could be read into it and the levies made under other laws could not be got affected by such a notification."
On a parity of reasoning, the exemption Notification (SRO-505(1)/88 is purely relatable to the Customs duties imposed under subsection (1) of section 18 and has no nexus with the levy of regulatory duty under section 18(2) of the Act, which stands unaffected. Had the exemption been couched in general words to the effect that Customs duties levied under section 18 of the Act were wholly or partly exempted, then perhaps the petitioner could have claimed exemption in respect of the regulatory duty on the ground that it was also a kind of Customs duty (as held in the case of Nawab Brothers v. Collector Customs (PLD 1977 Kar. 947). However, the wording of SRO 505(1)/88 not being general in character, the exemption claimed by the petitioner cannot be allowed.
8. The exemption Notification SRO 505(1)/88, grants exemptions in respect of Customs duties chargeable on goods falling within the First Schedule of the Act. The subsequent amendment made (through SRO 639(1)/89 dated 17-6-1989) in SRO 505(1)/88, brings in some new subheading numbers i,e.
55.01 to 55.07 which relate to man-made fibres. The rate of duty for the manmade fibre is shown as Rs,15 per K.G. Meaning thereby that the Customs duty chargeable on man-made fibre under the First Schedule of the Act could be Rs,15 per K.G. Only and the duty beyond the said amount was exempted. It may be mentioned that originally 40 per cent. Ad valorem Customs duty was prescribed in the First Schedule for the man-made fibre and the same held the field till SRO 639(1)/89 was issued on 17-6-1989. Apparently the object was to grant exemption of Customs duty if on calculation made at the rate of Rs,40% ad valorem it was found to be in excess of duty calculated at the rate of Rs,15 per K.G. The Legislature appears to have amended the provision relating to 40% ad valorem customs duty and provided Customs duty at the rate of Rs,15 per K.G.
Through Finance Act of 1989. After the above-referred amendment brought about through Finance Act of 1989, now the Customs duty is Rs,15 per K.G. And the same rate has been specified in SRO 639(1)/89, dated 17-6-1989. The two rates being the same, the question of exemption in respect of the man-made fibre does not arise. It is entirely for the Government to re-consider the matter and allow some benefit in the shape of exemption to the petitioner and other traders.
9. As regards the so-called departmental practice, there does not appear to be any consistent practice of construing exemption notification issued under section 19 of the Act to cover Customs duties as well as the regulatory duty levied under section 18 of the Act. The earlier letter No,CBR-C.
No,1(97)- Machinery/83, dated 16-1-1984 was relatable to the exemptions granted through some Notifications which have not been placed before this Court. Hence, it cannot be said whether the Central Board of Revenue had correctly construed the exemption Notification or not. In the present case, we are concerned with the exemption Notification, S.R.O. 505(1)/ , dated 26-6-1988 as amended subsequently which does not admit of the construction placed on it by the petitioners' learned counsel that it covers all kinds of levies made by the Legislature under subsection (1) of section 18 or by the Federal Government under subsection (2) of section 18 of the Act. Conversely, the said notification is clearly relatable to "the Customs duties" in respect of the goods falling within the heading and sub-heading numbers of "the First Schedule" of the Act. Therefore, the petitioner cannot take advantage of the letter issued by the CBR in the year 1984, particularly when the factum of the so-called consistent practice is otherwise falsified by the consistent and persistent demand of regulatory duty by the Customs Authorities. The judgments in the cases of Nazir Ahmad and Raddq Corporation referred to by the petitioner's learned counsel proceed on distinguishable facts and are not relevant in the present case.
10. The argument that no notification holds the field in respect of the period pertaining to the year 1991-92 has no force either. The notification was duly issued on 1-7-1991 and then published in the official Gazette on 3-7-1991. Therefore, the Customs Authorities can lawfully recover the Regulatory Duty for the period 1991-92 as well.
11. For the foregoing discussion, I find no merit in the present petition and the other connected petitions which are dismissed with costs. The petitioners were allowed interim relief for release of the imported goods subject to furnishing of bank guarantee (or insurance guarantee in some cases). It is clarified that the Customs Authorities shall be at liberty to recover the regulatory duty due from the petitioners through encashment of the bank insurance guarantees furnished by them.
1992 CLC 167 [Lahore] Bcfore Falak Sher; Miss WAFA RASHEED SALEEMI---Petitione' versus CHAIRMAN, ADMISSION BOARD FOR MEDICAL COLLEGES/PRINCIPAL, KING EDWARD MEDICAL COLLEGE, LAHORE and another---Respondents Writ Petition No,7083 of 1990, decided on 22nd October, 1991.
(a) Educational institution-- ----Constitution of Pakistan (1973), Art.199---Prospectus of Medical Colleges in Punjab (1990-91), R.23---Admission to First Year M.B.,B.S. Class of Medical College---Petitioner applying for admission within due date and in terms of prospectus against seats allocated for open general merit on basis of secondary school general certificate from the Directorate of Intermediate and Secondary Education, State of Bahrain and High School Graduation Diploma from International School, Bangkok, and equivalent certificates issued by the University conferring recognition equivalent to intermediate examination for the purposes of higher education contemplated by R.23 of the Prospectus---Petitioner failing to get admission---Validity---Rule 23, Prospectus of Medical Colleges in Punjab (1990-91) prescribed bi-fold exercise viz, eligibility equivalence in terms of syllabi for the within mentioned subjects of Chemistry, Physics and Biology to be considered by the University whereafter applicant's comparative merit equivalence was to be considered by the Admission Board in keeping with the equivalence conversion formula/criteria evolved by the said Board, rationale whereof was well-founded on the basis of reasonable classification---Petitioner's contention of excessive delegation in the context of things on that very count, stood repelled, for delegation of powers to the most experienced professionals with objectivity of purpose in mind appeared to be well based---Contention as to evaluation out of different volumes was devoid of any substance when visualised in the light of the fact that while determining comparative merit equivalence requisite mathematical mechanism was adopted weeding out any possibility of prejudice being caused---Petitioner having not qualified for admission on merit as per determination of Admission Board adjudged according to the criteria laid down by it for determination of comparative merit equivalence in exercise of powers conceived in R.23 of the Prospectus (1990-91), she was rightly dropped out from the list of successful candidates. [p. 171]A & C
(b) Educational institution-- ----Constitution of Pakistan (1973), Art.37(c)---Admission in First Year M.B.,B.S. Classes of Medical College---Non-admission of petitioner whether violative of the provisions of Art.37(c) of the Constitution---Provisions of Art.37(c) of the Constitution contemplate achievement of collective public good in preference to individual advancement---Non-admission of petitioner who was otherwise not qualified in terms of general merit was not violative of Art.37(c) of the Constitution.
[p. 171] B
(c) Educational institution--- ----Constitution of Pakistan (1973), Art.199---Prospectus of Medical Colleges in Punjab (1990-91) Rr.
6 & 23---Admission in First Year M.B,.B.S. Class of Medical College---Amendment in R.23, Prospectus of Medical Colleges in Punjab (1990-91)---Validity---Prospectus of Medical Colleges for the year 1990-91 both on the cover in bold letters as also in R.6 thereof, incorporated with particularity right to amend the same---Rule 23 of the Prospectus envisaged Admission Board's power to determine the merit equivalence well before the last date for receipt of admission forms- --Admission Board not only formulated the formula for equivalence certificate but also notified the same, prior to receipt of Admission Forms---Admission Board's decision declining admission to petitioner being in accordance with equivalence certificate and formula adopted by it for admission, was not violative of the admission policy as enshrined in R.23, Prospectus of Medical Colleges in Punjab (1990-91). [p. 172] D Muhammad Saleem Sahgal for Petitioner.
Maqbool Elahi Malik, A.G., Punjab for Respondents.
Date of hearing: 22nd October, 1991.
' Writ Petitions Nos. 7083 and 8084 of 1990 having commonalty of facts and law are being disposed of together hereinbelow:
2. Pursuant to the advertisement flashed in national dailies with vast circulation, inter alia 'The Daily Nawa-i-Waqt's issue of 6th August, 1990, inviting applications for admission to First Year M.B.,B.S. Class of Medical Colleges in the Province of Punjab for the academic session 1990-91, stipulating 31-8-1990 to be the last date for the receipt of applications, Miss Wafa Rasheed Saleemi and Miss Mehnaz Ansar Khan respectively, the petitioners, applied for admission within the due date and terms of the prospectus against seats allocated for open general merit on the basis of secondary school general certificate (scientific section) from the Directorate of Intermediate and Secondary Education, State of Bahrain June, 1990 securing 812 marks out of 900 with inter alia rating in Physics 71/100, Chemistry 189/200, Biology 182/200, English 96/100 and Arabic 86/100, High School Graduation Diploma from International School Bangkok, Thailand, July, 1990, Grade-12 with inter alia grading in Biology A/B, Chemistry A/A, Physics B+ and English A respectively and the equivalence certificates issued by the University of the Punjab conferring recognition equivalent to intermediate examination for the purposes of higher education contemplated by Rule 23 enshrined in the Prospectus.
3. However, having failed to meet with success, petitioners had recourse to the present petitions urging non-furnishing of the reasons for refusal and that applicants with Pre-Medical F.Sc.
Intermediate Higher Secondary School Certificates from the Local Boards of Intermediate and Secondary School Examination with lesser marks despite the equivalence certificates have been preferentially granted the admission.
4. Wherein, report and parawise comments submitted by the Chairman, Admission Board for Medical Colleges/Principal, King Edward Medical College, Lahore revealed that the petitioners did not qualify for admission on merit as per determination of the Admission Board adjudged according to the criteria laid down by it for determination of comparative merit equivalence in exercise of powers conceived in Rule 23 of the Prospectus, which works out to be 759 and 756 out of 1100 marks respectively while the last applicant admitted on open general merit had secured 808 marks excluding the subsequent drop outs.
5. During the course of hearing, it transpired that the Admission Board comprising Principals of all the seven Medical Colleges of Punjab namely King Edward Medical College, Lahore, Allama Iqbal Medical College, Lahore, Rawalpindi Medical College, Punjab Medical College, Faisalabad, Fatima Jinnah Medical College, Lahore, Nishtar Medical College, Multan and Quaide-Azam Medical College Bahawalpur in its meeting convened on 15-8-1990, inter alia, endorsing the prospectus printed by the Punjab Government for the session 1990-91, accorded approval to the modified formula/criteria for evaluation of merit on the basis of certificates other than F.Sc. As under:{{TABLE}} "A+ and A = A = 75% A--, B + & B = B = 65% B--, C+ & C = C = 55% C--,D+ &D= D = 45% D--,E+ &E= E = 35% 90 -- 100 80 -- 89 = B 70 -- 79 60 - 69 50 -- 59 = E" ' which was notified on 27-8-1990 i,e. Prior to the advertised last date for receipt of admission forms.
6. The Chairman, Admission Board opting to enter appearance on his own volition took pains to explain the wisdom, rationale and impelling reason necessitating evaluation of the criteria for determining comparative merit equivalence viz. F.Sc. Pre-Medical Examination conducted by the domestic Boards of Intermediate and Secondary Education as the minimum academic eligibility prerequisite for admission to a professional medical college, is based upon British pattern of educational syllabi and examination i,e. Internal, external and descriptive system with 33% minimum pass marks and first division commencing 60% onwards, wherein scoring beyond the ceiling of 90% is imperceivable; against the American system based upon objective test where 100% scoring is possible even in subjects like English language; the minumum pass marks being 60% and goes up to 100%, further the syllabi only renders the students eligible for admission to a 4 years pre-medical course and not to a professional medical school.
7. While the learned counsel for the petitioners contended that the equivalence certificate having been granted by the competent University authorities attained finality within the contemplation of Rule 23 ibid and rendering it subservient to the dictate of Admission Board is uncalled for; is violative of Article 37(c) of the 1973 Constitution; is a case of excessive delegation; the formula/criteria adopted by the Admission Board is arbitrary, discriminatory and unreasonable; petitioners' merit has been assessed 'on the basis of lesser subjects while their indigenous counterparts have been evaluated out of 1100 marks, lastly the formula/criteria in question is not applicable to the petitioners since it was evolved subsequent to the publication of admission advertisement.
8. I am afraid, the arguments canvassed by the learned counsel for the petitioners suffer from misconception. Rule 23 ibid, text whereof in extenso for the sake of convenience of reference is reproduced hereinbelow: Rule 23: "Candidates belonging to Punjab Province who possess qualifications equal to Intermediate (Pre- Medical) in the subjects of Physics, Chemistry and Biology can apply for admission. Only those qualifications which have been declared equivalent to F.Sc. (Premedical) by the relevant University for admission to the Medical Colleges of Punjab will be considered. The equivalence of merit will be determined by the Admission Board." prescribes bi-fold exercise viz., eligibility equivalence in terms of syllabi for the within mentioned subjects of Chemistry, Physics and Biology to be considered by the University whereafter the applicants' comparative merit equivalence is to be determined by the Admission Board in keeping with the equivalence conversion formula/criteria evolved by the Board comprising seven Principals of the medical colleges with life-time experience in the field to their credit, rationale whereof as explained by the Chairman of the Admission Board is well-founded on the basis of reasonable classification. On that very count the contention of excessive delegation in the context of things stands repelled because the delegation of powers to the most experienced professionals with objectivity of purpose in mind appears to be well-based instead of leaving it to the whims of bureacratic apparatus in the Secretariat attuned to self-propagation.
9. Likewise the argument qua alleged violation of Article 37(c) of the 1973 Constitution seems to have been advanced to oblivion of the fact that it contemplates achievement of collective public good in preference to individual advancement.
10. Similarly the contention as to evaluation out of different volumes i,e. 900 and 1100 is devoid of any substance when visualised in the light of the fact that while determining the comparative merit equivalence requisite mathematical mechanism was adoptd weeding out any possibility of prejudice being caused viz. Wafa Rasheed petitioner {{TABLE}} Subjects Obtained Marks/Grade Equivalent Grade/Marks Physics 79 C = 55 Chemistry 189 = 94.5% A = 75 Biology 182 = 91% A = 75 English 96 A = 75 Arabic 86 B = 65 345 345 X 1100 = 759 marks, 500 Mehnaz Ansar petitioner {{TABLE}} Biology = A/B = 65 Chemistry = A/A- = 70 Physics = B + = 65 English = A = 75 275 275 X 1100 = 756 400
11. Adverting to the last contention it suffices to observe that independent of the fact that the Prospectus both on the cover in bold letters as well as in Rule 6 thereof incorporates with particularity right to amend and Rule 23 ibid envisages Admission Board's power to determine the merit equivalence, the latter well before the last date for receipt of the admission forms not only formulated the formula but also notified the same prior thereto while scrutinising the prospectus for the admission in question, therefore, for all intents and purposes and for all and sundry concerned with the admission to a medical college in Punjab in every consumable sense of the word were bound by the same.
' In view of the aforegoing, the petitions being devoid of any substance are hereby dismissed leaving the parties to bear their respective costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.