ABDUR RAHMAN KHAN, J.---This judgment will also dispose of the writ petitions noted below as all these arise under similar factual aspect and present common legal points for determination:--
(i) W.P. No,625 of 1992, M/s. Khyber Agro (Pvt.) Ltd. v. Assistant Collector Customs.
(ii) W.P. No,706 of 1992, M/s. Kaghan Ghee Mills v. Assistant Collector Customs etc.
(iii) W.P. No,106 of 1993, M/s. Gadoon Textile Mills v. Government of Pakistan etc.
(iv) W.P. No,107 of 1993, M/s. Saif Textile Mills v. Government of Pakistan etc.
(v) W.P. No,183 of 1993, Nawaz Ghee & Oil Mills (Pvt.) Ltd. v. Federation of Pakistan etc.
(vi) W.P. No,266 of 1993, M/s. Latif Shakir Taxtile Mills v. Government of Pakistan etc.
(vii) W.P. No,325 of 1993, Utman Ghee Industries (Pvt.) Ltd. v. Assistant Collector Customs etc. (viii)W.P. No,393 of 1993, M/s. Royal Textile Mills v. Federation of Pakistan etc.
(ix) W.P. No,476 of 1993, Asian Industries (Pvt.) Ltd. v. Assistant Collector of Customs etc.
(x) W.P. No,542 of 1993, River Side Chemical (Pvt). Ltd. v. Assistant Collector Customs etc.
(xi) W.P. No,616 of 1993, M/s. Sarhad Ghee Mills v. Government of Pakistan etc.
(xii) W.P. No,856 of 1993, Shah Ghee Mills (Pvt.) Ltd. v. Federation of Pakistan etc.
(xiii) W.P. No 306 of 1994, Tordher Vegetable Ghee & Cooking Oil v. Assistant Collector Customs etc.
2. The relevant background for filing these writ petitions is that the petitioners are registered Companies incorporated under the Companies Ordinance, 1984 and have their industries in Gadoon Amazai Industrial Estate of District Swabi. The people of Gadoon Amazai area used to cultivate poppy in their lands which was their cash crop and the main source of their income and livelihood. The Provincial Government stopped the people of the area from growing poppy and in order to provide them with alternative source of income it was decided to set up an Industrial Estate in the area. It was obvious that this remote far flunged and otherwise unattracted area in all respect would hardly attract any investment, therefore, the Government gave certain incentive and concession to the industries to be installed in the area. Following are relevant Notifications granting concession/exemption from customs and sale tax duties on raw materials:--
1. S.R.O.517(i)/89 dated 3-6-1989 Exemption from custom duties and sales tax.
2. S.R.O.677(i)/89, dated 28-6-1989, Iqra surcharge.
3. S.R.O.678(i)/89, dated 28-6-1989; Import surcharge.
' Similarly 50 per cent. Rebate in electricity tariff concession in income-tax and loan from Banks and financial institution were also provided. Exemption from import duties of the machinery for this Industrial Estate was also granted.
3. The dispute in these writ petitions arose when the respondents imposed regulatory duty on the raw materials imported by the petitioners for consumption in their factories. The plea of the petitioners is that the regulatory duty is nothing but custom duty which could not be levied as under Notification No,517 dated 3-6-1989, the petitioners were exempt from payment of whole of the custom duties on import of the raw materials and its components. Reliance was placed on the decision given in respect of imposition of regulatory duty in W.P. No,456 of 1990 decided on 3-3- 1992 and reported in PLD 1992 Peshawar 191 and against which Petition for Leave to Appeal No,99- P/92 and Civil Review Petition No,35 of 1993 were dismissed by the Supreme Court. It was held in the above decision that the regulatory duty being part of the custom duty is exempt under Notification No, S.R.O.517 (i)/89 and, therefore, the petitioners cannot be compelled to pay it. It is curious that in some of the writ petitions no written statement was filed but in the written statement in W.P. No,106 of 1993 captioned as M/s. Gadoon Textile Mills v. Government of Pakistan etc. The applicability of the judgment in W.P. No,456/1990 was refuted in this way: "The decision of this Honourable Court in W.P.No,456/1990 regarding the scope of concession on account of regulatory duty was restricted to the period in between issuance and rescindance of Notification S.R.O.517 (i)/89 dated 3-6-1989, whereas the industries in the instant case commenced when the exemption under the rescinded notification was no longer available". In nutshell the application of the decision in the said writ petition to the facts and circumstances of this case was controverted.
4. The learned counsel for the petitioners argued that under Notification No,517(i)/89 dated 3-6- 1989 the raw materials and components meant for the petitioners industrial units operating in the industrial estate of Gadoon Amazai are exempt from the whole of the custom duty and that the regulatory duty in substance is custom duty chargeable under the provision of the Customs Act.
This submission was re-enforced by the decision of this Court referred to above which was approved by the Supreme Court as explained in the preceding para. This judgment was delivered exactly under similar circumstances and the same legal points as to whether regulatory duty is part of custom duty was involved therein. It was held that Regulatory duty is nothing but custom duty and was, therefore, exempt under the above notification.
' The learned Deputy Attorney-General when confronted with the legal position enunciated in the above judgment of this Court and confirmed by the Supreme Court was naturally not in a position to seriously plead otherwise but rather confined his submission to the period during which the benefits under the notification would be available. He clarified that exemption can be availed during the period the exemption granting notification was operative and not after its withdrawal.
Petitioners' Advocate frankly conceded this position.
The perusal of the mentioned judgment of this Court revealed that it was held therein that the regulatory duty is essentially custom duty and the Supreme Court agreed with this interpretation.
We, therefore, while relying on the said decision accept these writ petitions only to the extent that the petitioners are not liable to pay the regulatory duty from the date of A enforcement of the exemption granting Notification No,517(i)/89 dated 3-6-1989, till the date this notification was rescinded and that the respondents are not legally competent to demand regulatory duty from the petitioners during the said period and we also declare that the respondents are liable to refund whatever amount they have received on this count from the petitioners. We would, however, leave the parties to bear their own costs.