' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the learned Judge in Chambers whereby the Constitution Petition filed by the respondent was allowed and it was held that the customs duty payable by the respondent would be at the rate of duty in force on the date on which the duty is actually paid.
2. The brief facts are that the respondent was engaged in setting up a new cotton spinning mills at Jaranwala. In the month of May 1988 the respondent imported textile machinery by opening an irrevocable letter of credit. When the machinery arrived in Pakistan the respondent filed inbond bill of Entry No.250501988 on which customs duty was assessed at Rs.98,59,135 on 28-5-1988. The respondent had claimed exemption from payment of customs duty, sales tax surcharge and Iqra surcharge, but the petitioners allowed 50 per cent rebate in the customs duty and held the petitioner liable to pay 20 per cent regulatory duty, surcharge and Iqra surcharge. This made a total sum of Rs.98,59,135. The respondent challenged the levy of surcharge in a Constitution Petition (W.P.) No.2854 of 1988 in which by an interim order the petitioners were directed to release the machinery subject to the respondent furnishing bank guarantee to the extent of the disputed amount of regulatory duty. No stay was granted in respect of Iqra surcharge. The respondent filed civil petition for leave to appeal (C.P.LA. No.262-R of 1988) in this Court where recovery of surcharge and Iqra surcharge was stayed subject to the respondent furnishing bank guarantee. As bank guarantee was not furnished, the stay order remained inoperative. The writ petition was, however, dismissed by the High Court. The respondent, however, filed ex-bond bill for clearance of goods from the warehouse on 16-6-1988. The respondent also deposited 50 per cent of the duty assessed, namely, Rs.49,29,568 on 22-6-1988. The remaining amount was to be paid in the form of debentures. Before the debentures could be furnished, notification dated 26-6-1988, which is at page 35 of the paper book was issued whereby in exercise of powers under section 19 of the Customs Act and subsections (1) and (2) of section 7 of the Sales Tax Act, the machinery imported for the purpose of setting up industries as specified in the notification and for setting up industries in the area as mentioned in the table of the notification, was exempt from whole of the customs duty and sales tax leviable thereon. In view of this notification the respondent claimed exemption from payment of customs duty which was denied by the petitioners. The respondent then filed a Constitution Petition challenging the petitioners' refusal to allow clearance of the machinery without payment of customs duty. By an order dated 2-8-1988 the High Court allowed the respondent to clear the machinery from the bonded warehouse subject to furnishing debentures.
The goods have been cleared and the debentures are in possession of the petitioners. By the impugned judgment while taking note of the provisions of section 30 of the Customs Act the petition was allowed. Section 30 of the Customs Act reads as follows:-- "30. Date of determination of value and rate of import duty.---The value, and the rate of duty applicable to, any imported goods shall be the value and the rate of duty in force:--
(a) in the case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under the section; and
(b) in the case of goods cleared from a warehouse under section 104, on the date on which a bill of entry for clearance of such goods is presented under that section: Provided that where a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered: Provided further that, in respect of goods for the clearance of which a bill of entry for clearance has been presented under section 104, whether before or after the commencement of the Finance Ordinance, 1979, and the duty is not paid within seven days of the bill of entry being presented, the value and rate of duty applicable shall be the value and rate of duty applicable on the date on which the duty is actually paid."
3. The learned counsel for the petitioners has contended that the second proviso to section 30 would not be applicable to a case where part of the duty had been paid and that such a situation will be governed by section 30(b) of the Customs Act. On the other hand the learned counsel for the respondent has contended that as the entire duty had not been paid, within seven days of the presentation of the bill of entry, the case was covered by the second proviso to section 30. The learned Judge taking note of the provisions of the Customs Act observed as follows:-- "Under section 79 of the Customs Act, 1969. The owner of the imported goods has to file a Bill of Entry either for home consumption or for warehousing. Section 80 provides for assessment of duties and further ordains that the owner of such goods may proceed to clear the same for home consumption or warehouse subject to the provisions contained in the Act. Section 83 deals with clearance of goods for home consumption. The procedure for warehousing is provided by Chapter XI, section 104 whereof states that any owner of warehoused goods may at any time within the period of warehousing mentioned in section 98 clear the goods for home consumption by paying duty assessed on such goods. Section 30(b) of the Customs Act, 1969 makes a reference to section 104 of the Act which stipulates that the goods can only be cleared for home consumption by paying duty assessed on the goods under the provisions of the Act alongwith rent, penalties, surcharge and other charges in respect of such goods. It is thus clear that 'expression duty' in second proviso to section 30 has reference to entire duty assessed on the goods in accordance with the provisions of the Act.
In the present case, admittedly when the notification dated 28th June, 1990 was issued, only half of the duty had been paid while the remaining was still outstanding and was as a matter of fact paid in the form of debentures after the petition was filed. Consequently, as the entire duty had not been paid so as to enable the petitioner to take the delivery of goods, the case of the petitioner falls under second proviso to section 30."
' The learned Judge also relied upon Ibrahim Textile Mills Ltd. v. Federation of Pakistan PLD 1989 Law 47 in which the principles laid down in section 30 regarding the rate of duty to be applied have been reiterated. According to the learned counsel the judgment of the High Court referred to has been confirmed in Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCM R 1898. In the judgment of the High Court referred to above the provisions of section 30 have been reiterated, but the controversy before us is completely different. Here the question for consideration would be as follows:- ' Where bill of entry for clearance of goods from warehouse has been presented and part of the duty has been paid within seven days and the balance has not been paid within this period, will the value and rate of duty applicable be as provided by the second proviso to section 30.
4. In the judgment of this Court referred to above, no observation has been made with regard to this aspect of the case. As the question raised requires interpretation of section 30 of the Customs Act, which is of general importance, leave is granted.
5. Since the matter involves financial implications and is of general importance, the appeal shall be fixed at an early date within six weeks. The parties shall make the paper book ready within a period of one month. The learned counsel for the petitioners states that they would hold the debentures as security and would not realise any amount from it. The learned counsel for the respondent on the other hand states that as the appeal is being heard at an early date, the respondent would not press the claim for refund till the final decision of the appeal. In view of the statement of the learned counsel for the parties, no order for stay is required.