1. SIDDIKY, C. J.-The petitioner in this Rule has challenged the validity of a Notification No. S. R. O. 1292 (K)/62 dated 8th December 1962, passed by the Central Board of Revenue, Government of Pakistan, copy of which has been marked as Annexure `A' to the petition. He has further prayed for a direction upon the respondents 3 and 4 to recall, rescind and withdraw Order No. 574 dated 7-12- 63 (Annexure `C') passed by the Collector of Customs.
2. The petitioner, which is a private limited company, being an industrial consumer, imported Nitrogen Gas, Tungsten-Filaments wire, Lead-in-wires and Brass lamp caps for the manufacture of incandescent lamps (electric bulbs) in East Pakistan under Import Trade Control Licence. The goods in question arrived at the Chittagong port in 1963. The petitioner-- company then deposited customs duty and took delivery of the goods. But so far as Bill of Entry No. 461 dated 19-3-63 for Rs.
3. 19,960.84 paisas is concerned, the actual delivery of the goods commenced on 26-3-1963 and ended on 1-5-1963. Thereafter, in terms of S. R. O. 1292 (K)/62, dated 8-12-62, the petitioner- company applied on 3-7-63 with a certificate from the Director of Industries (East Pakistan) for refund of Rs. 19,960.84 paisas in respect of Bill of Entry No. 461 dated 19-3-63 on the ground that, under section 23-A (2) (b) of the Sea Customs Act, it is entitled to the refund as the commodities imported by it were for consumption in an industrial concern.
4. The Assistant Collector of Customs rejected the petition for refund on 9-8-63 on the ground that the refund application has been filed beyond three months from the date of payment of duty, I e.
5. 19-3-63, and as such the petitioner was not entitled to the refund under S. R. O. 1292 (K)/62, dated 8-12-62. There--upon, the petitioner preferred an appeal to the Collector of Customs, Chittagong who by his order dated 7-12-63 (Annexure `C' to the petition), dismissed the appeal of the petitioner. Then the petitioner filed a revisional application before the Central Board of Revenue, Government of Pakistan. The Central Board of Revenue, on 7th of September 1965, rejected the revisional apple--cation of the petitioner upholding the decision of the Collector of Customs that the application for refund was filed beyond time.
6. The respondent No. 3, the Collector of Customs, filed an affidavit-in-opposition affirmed by one Shamsul Huda Chowdhury who has described himself as the Principal Appraiser of the Customs House, Chittagong. In the affidavit-in-opposition fit has been stated that S. R. O. 1292 (K)/62, dated 8-12-62 is intra vires ; that the order of the Assistant Collector rejecting the application of the petitioner for refund is valid, and that for customs purposes the date on which the clearance order was given by the Customs Authorities is the date of clearance of the goods and as such the order of the Assistant Collector of Customs in terms of para. (iv) of S. R. O. 1292 (K)/62, dated 8-12-62 is within the law. It has further been stated in the affidavit-in-opposition that at no point the petitioner contended that the goods were cleared by the petitioner-company on 1-5-63.
7. Before we proceeded further, we prefer to quote below the provisions of section 23-A of the Sea Customs Act which are relevant for the purpose of this case.
8. "23-A. Power to deliver goods without payment of duty and repay on goods.-(1) The Chief Customs Authority may in such general cases as it may by rules prescribe or in such particular cases as it may by special order direct, authorize, subject to such conditions, limitations, or restrictions as it sees fit to impose, the delivery without payment of the customs duties chargeable thereon of goods which are imported only temporarily with a view to subsequent re-exportation.
(2) With the previous sanction of the Central Government, the Chief Customs Authority may, subject to such conditions or restrictions as it may seem fit to impose, authorise- "(a) the delivery without payment of the whole or any part of the customs duties chargeable thereon of imported materials, of such classes or descriptions as it may prescribe, intended to be used in the production, manufacture, processing, repair or re-fitting in Pakistan of goods of such classes or descriptions as it may prescribe and
(b) the repayment in whole or in part of the customs duties paid on the importation of any materials, of such classes or description as it may prescribe, which have been used in the production, manufacture, processing repair or refitting in Pakistan of goods of such classes or descriptions as it may prescribe."
9. Section 23-A provides for the power of the Chief Customs Authority to deliver goods without payment of duty and repayment of duty already paid by an importer. Subsection (1) of section 23- A provides for delivery of goods by the Customs Authority without payment of duty by the importer and/or repayment of duty realised in such general cases which may by rules be prescribed by the Chief Customs Authority or in such particular cases as the Chief Customs Authority may by special order direct subject to such conditions, limitations or restrictions as it may see fit to impose.
10. Subsection (2) of the section provides for the power of the Chief Customs Authority, with the previous sanction of the Central Government, to deliver without payment or repayment of customs duty subject to such conditions or restrictions as it may see fit to impose. The relevant clause for purposes of this case is clause (b). Subsection (2) of section 23-A. Under authority of clause (b) of subsection (2) of section 23-A, S. R. O. 1292 (K)/62 dated 8-12-62 was issued by the Central Board of Revenue, which we are informed by the learned Deputy Attorney-General is the Customs Authority for the purpose of this section, authorising repayment in whole of the Customs duty paid on the importation of the materials as specified in the table below and used in the manufacture of in-- candescent lamps, subject to the conditions laid down therein. S. R. O. 1292 (K)/62 dated 8th December 1962, is in the following terms "S. R. O. 1282 (K)/62.-In exercise of the powers conferred by clause (b) of subsection (2) of section 23-A of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of its Notification S. R. O.
11. 1144(K)/61 dated the 7th December 1961 the Central Board of Revenue, is pleased to authorise with effect from the 7th of December 1961, the repayment in whole of the customs duties paid on the importation of the materials specified in the table below and used in the manufacture of incandescent lamps, subject to the following conditions- .
(i) the materials are covered by an Import Trade Control Licence issued in favour of an `Industrial Consumer'.
(ii) The importers of the materials shall declare that the materials have been imported for use in the manufacture of incandescent lamps and that they will not be used otherwise.
(iii) The declaration referred to in paragraph (ii) shall be recorded in the office of the Collector of Central Excise and Land Customs, as the case may be ; and
(iv) the importers shall within three months from the clearance of the materials on payment of full customs duties, .Claims from the Collector concerned refund of the customs ,duties paid on the specified materials, the claim being supported by a certificate issued by the Joint Director of Industries (Licensing and Mineral), Directorate of Commerce and Indust--ries, Dacca or Director of Industries West Pakistan, Lahore or Additional Director of Industries, Karachi or Lahore or Deputy Director of Industries, Peshawar Region, or Sargodha Region or Multan Region, or Lahore Region, or Hyderabad Region .Or Quetta Region, to the effect thatJoint Director (Director or Additional or Deputy Director), .Am satisfied that the raw materials (details to be given) on which duty has been paid by the importers under bill of entry 'No . . . . . . . .Dated. . . . . . . .Are for bona fide use in the industry.
12. Table.
13. Nitrogen Gas, Argon Gas or Mixtures of the gases in various iproportions.
14. Phophorous pentoxide.
15. Brass caps for lamps.
16. Tungsten wire and tungsten filaments.
17. Molybdenum wires.
18. Lead-in-wires."
19. This notification of the Central Board of Revenue is under challenge in this Rule.
20. S. R. O. 1292 (K)/62 dated 8th December 1962, in our .Opinion, is in full conformity with the provisions of clause (b) .Of subsection (2) of section 23-A of the Sea Customs Act. Subsection (z) of section 23-A authorises the Chief Customs Authority to impose such conditions or restrictions as it may see fit to impose for the exercise of power under clause (b) thereof by the Customs Department.
21. The conditions laid down in the impugned S. R. O. 1292 (K)/62 dated 8-12-62, in A our opinion, are in no way outside the scope of the legal provisions of subsection (2) of section 23-A and as such the same cannot be said to have been issued without any lawful authority by the Central Board of Revenue. This disposes of the first contention of the petitioner with regard to the validity of the impugned S.R.O 1292 (K)/62 The next contention of the petitioner is that, in terms of clause (iv) of the impugned S. R. O., the importer is entitled to the refund of the duty paid if within three months from the date of clearance-and according to the petitioner the date of clearance mentioned in this clause must mean the date on which he took the goods out of the jetty he applies for the refund with a certificate from the relevant officer mentioned in the said, clause. It has not been alleged by the petitioner that, if there --was any delay in taking delivery of the goods, it was because of the laches of the Customs Authorities. In the present case, according to the petitioner, he took delivery of the consignment in question for the last time on 1-5-63, and he having filed the--re fund application with the necessary certificate from the Director-- of Industries on 10-7-63, his application is within three months as contemplated by clause (iv) of the impugned S. R. O. 1292 (K)/62, and as such the rejection of his application by the Assistant Collector of customs-and the maintenance of the said order by, the Appellate and Revisional Authorities is violative of the provisions of clause (iv) itself.
22. This raises the question of our interpreting the phrase "within three months from the clearance of the materials" occurring in clause (iv) of the impugned S. R. O. 1292 (K)/62. It is admitted on all hands that the customs duty payable for the bill of entry relating to the consignment in question was paid by the petitioner on 19-3-63 and on 21-3-63 the Customs Authorities issued the delivery order of the consignment. This released the goods for purposes of customs duty to be taken away by the petitioner. After the Customs Authority has issued a clearance order, there is nothing further to be done by the Customs Authority. If after that the petitioner does not remove the goods from the warehouse of the jetty which belongs to the Port Authorities and chooses to pay demurrage or makes some other arrangement with the Port Authorities for stocking the consignment in the Port's warehouse the Customs Authorities cannot, in our opinion, be held liable for purposes of section 23-A (2) (b) read with S. R. O. 1262 (K)/62 dated 8th December 1962.
23. The expression "clearance" mentioned in clause (iv), in our opinion, relates to the clearance by the Customs Authorities either on payment of duty or without payment of duty as the case may be, as the exemption relates to customs ,duty and not to any other thing. We are, therefore, unable to accede to the submissions of the learned Advocate for the petitioner that the expression "within three months from the clearance of the materials", occurring in clause (iv) of the impugned S. R. O., relates to the physical clearance of the goods from the Customs c warehouse. The clause, in our opinion, relates to the date on which the customs duty was paid and the clearance order was given by the Customs Authorities. It therefore comes to this that the three months' period mentioned in clause (fv) of the impugned S. R. O. Means within three months from the date the: customs duty was paid and clearance order was given by the Cutsoms Authority for the consignment in question and no from the date of the petitioner-company having taken the last package of the consignment from the Port warehouse.
24. Our interpretation of clause (iv) of the impugned notification may even cause hardship to a party who unfortunately has filed the petition a day beyond three months counted from the date of payment of duty and clearance order obtained from tie Customs, but we cannot possibly help as the law seems to be clear on the point. In such cases, the Chief Customs Authority has the right to exercise his discretion and give such relief as the Chief Customs Authority may feel justified.
25. This we say because clause (iv) does not demand that 11e certificate, to be obtained from the relevant officer, should be to the effect that the goods imported have been used for the manufacture of certain materials in the industrial concerti, What is demanded is that the goods have been imported for bona fide use in the industry. Therefore, what the importerto do is to obtain a certificate from the relevant officer mentioned in clause (iv) of the impugned S. R. O. That the goods imported are for bona fide use in the industry which, in our opinion cannot take more than three months, and the period of three months fixed by the Chief Customs Authority in the impugned S. R. O. From that view is a sufficient time.
26. ABDUL HAKIM, J.-I agree.