JUDGMENT Iftikhar muhammad chaudhary, J:- In Constitutional Petitions No.283 to 288, 296, 321 to 324,326, 327 and 344 of 1995. Identical points are involved, therefore, we propose to dispose them of, by this common Judgment.
2. It would be appropriate to note relevant facts from C.P.No.283/1995 to under-stand controversy between the parties, as in other petitiones except minor details, facts are common. Petitioner imported a Ship, known as T.T STAR SOUTH AMERICA before 30.6.1995, for the purpose of scrapping at Gadani Beach District Lasbella. Accordingly Import General Manifest vide No. 16/13-6-95 along with bill of entry was filed on the same date as per Machine No.00040. It appears that in terms of section 50(5) of the Income Tax Ordinance 1979 (herein after referred as 'Ordinance of 1979')
Advance Income Tax at the rate of 2% of the value of ship, increased by Customs Duty and Sales Tax vide Tax payment receipt dated 28.6.1995, and first instalment of 34% of the, duty under "The deferment of Import Duty (on Ships for scrapping) Rules, 1993, (herein-after referred to as "the Deferment Rules") amended by notification dated 11.1.1995 issued by Government of Pakistan, Central Board of Revenue, were deposited on 29.6.1995, in National Bank of Pakistan Hub Chowki Branch. Before payment of second instalment of 33% of the duty Finance Act 1995 was promulgated w. E.f. 1.7.1995 in pursuance whereof, paragraph (f) of the first schedule of sections09, 10, and 50 appended with the 'Ordinance of f979' was amended, and rate of 2% advance Income Tax, was raised to 4%. Therefore, petitioner was called upon to pay additional 2% of the Advance Income Tax. Thus to challenge the demand for additional advance Tax, made by respondent, present Constitutional Petition had been filed.
3. In all connected petitions on filling, Bills of Entry, advance Income Tax at the rate of 2% as per section-50(5) of the Ordinance of 1979, and 34% first installment of the duty was paid on different dates, prior to 30.6.1995.
4. M/S Siraj-uI-Haque, Raja Qureshi and Zahid Alvi learned Advocates, appeared on behalf of petitioners and contended that action of Collector, Customs or his Authorised Officer in demanding additional 2% Advance Income Tax after 01.7.1995, under section-50(5)(a) of the Ordinance of 1979, is without lawful authority and jurisdiction. Petitioners have acquired a vested right on paying total Advance income Tax prior to promulgation of the Finance Act. 1995, therefore, in view of 1986 SCM R 1917-AL SAMREZ Enterprise vs. The Federation of Pakistan, 1993 SCM R 1905-MOLASSES TRADING and Export (Pvt.) Limited vs. Federation of Pakistan and others, 1989 CLR 1463 ABBASS STEEL INDUSTRIES LIMITED vs. Collector of Customs (Appraisement) Customs House Karachi and 3 others, and PTCL 1990 CL 457- CRESCENT PAK INDUSTRIES (Pvt.) Limited vs. Government of Pakistan and others, petitioners are entitled for constitutional protection.
5. Mr. Abdul Hameed Sheikh, learned Advocate, for Income Tax Department, argued that Advance Income Tax is required to be paid by the Importers on the amount computed by the Collector, on the basis of value increased, by Customs duty, Sales Tax, which shall be collected by Customs department, at the rate prevailing at the time of collecting the duty. But at the time of paying second instalment of Duty Advance Income Tax would be chargeable according to rate of 4% prevalent at relevant time therefore Collector Customs, rightly demanded Additional duty 2% under section-50(5)(a)(b) of te Ordinance of 1979, read with Deferment of Import Duty (on Ships for scrapping) Rules, 1993, (as amended). Learned Counsel however, conceded to the filing of Bills of Entry by all the petitioners, prior to 30.06.1995. Therefore, according to his version, at least on second instalment of duty of 33%, Government is entitled to receive 4% as Advance Income Tax.
6. Raja Rab nawaz, learned Deputy Attorney General, stressed on behalf of Customs department about non-clearance of Bills of Entry in each case, as number of documents, required to be annexed therewith, so for have not been filed therefore, according to him, the duty and Advance Income Tax, shall be calculated at the rate when clearance of documents is allowed by te Customs department, therefore, demand of additional 2% by way of Income Tax after 1.7.1995, is justified, as per the amendment in law.
7. It is to be observed that under section-80 Of the Customs Act. On receipt of Bills of Entry, the Authorised Officer, on behalf of Collector, Customs, will assess the duty on the imported goods, without delay, on having undergone this exercise, concerned officer is also bound to collect Advance Income Tax on the goods, according to Formula, prescribed under section-50(5) of the Ordinance of 1979, which reads as under: - "(5) Notwithstanding anything contained in any lay for the time being in force
(a) th Collector of Customs shall, in the case of every importer of goods, collect advance tax computed, on the basis of the value of such goods as increased by the customs duty and sales tax, if any, Levi able thereon, at the rates specified in the First Schedule, and credit for the lax so collected of Section 53, be given in computing the tax payable by such importer for the assessm ent year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom Section 72 or Section 81 applies, the assessment year, in which the "said date", as referred to therein, falls, whichever is later;
(b) the tax under clause 9a) shall be collected in the same manner and at the same time as the Customs duty, as if such goods (even though exempt from such duty) 'were liable to such duty, and all the provisions of the Customs Act 1969 (IV of 1969) shall, so far as may be, apply accordingly:'
EXPLANATION: As used in this sub-section;
(i) "Value" in relating to any goods means the value as determined under section 25 of Customs Act, 1969 (IV of 1969). As if the goods were subject to ad valorem duty; and
(ii) "Collector of Customs" means a person appointed as collector of Customs under section 3 of Customs Act (IV of 1969) and includes a Deputy collector of Customs, and Assistant Collector of Customs or an officer of Customs appointed as such under the aforesaid section".
8. On promulgation of the Finance Act. 1995 word 'leviable' has been substituted with the word 'levied' in the above sub-section. Petitioners' case is that as they had paid Advance income Taxt the rate of 2%.On the value of the Ship increased by Customs Duty under section 25-A of the Customs Act and 15% Sales Rax vide SRO 490(l)/94 dated 09th June, 1994, before 30.6.1995 therefore, they are completely exonerated from liability to pay Additional Advance Income Tax at the rate of 2% even after 1.7.1995 on promulgation of the Finance Act 1995 Section-50(5)(a)(b) of the Ordinance of 1979, being non-obstante precludes to all other provision contained in any law, for the time being enforced, conerning computation and collection of Advance Income Tax on Imported goods. By its charecter stick its provides machnizim of charging and collecting of Tax.
Further expressions used therein are plain and simple, therefore, following principle of Interpretation of Statute, for exploring true spirit of law and also to understand the intention of legislature. Besides it being physical law, rele-vant provision have to be construed. Under sub- section (5) of section-50 of the Ordinance of 1979, Collector, Customs or his Authorised officer has been empowered to charge Advance Income tax after computing it, on the basis of the value of Imported goods increasedly Custom duty and sales tax. The object obviously cannot be achieved without practically working out the exact amount of such tax. In this behalf, it is always required in case of a dispute, to show that a physical exercise for computing the amount of tax was carried out by said authority in accordance with Formula, prescribed by Tax Imposing Statute. Language employed in the section indicates that before exacting the tax, the Collector is required to have before him amount of customs duty and Sales tax, which has been demanded, by the Customs department, according to bill of entry if it has been accepted to be complete and correct, according to prevailing law.
9. Raja Rab Nawaz, learned Deputy Attorney General, staled that since Bills of entry in instant petitions have not been cleared, as requisite documents have not been supplied by Importers, therefore, legally it was not practicable for Custom authorities to work out actual amount of Advance Income Tax basing on Customs Duty etc. It is to be noted that according to Standing Order, dated 30th January, 1990, issued by the Collector of Customs, Gadani Customs House in the matters pertaining to the import of ships for scraping, number of documents are required to be attached therewith. Relevant para from the order for convenience is reproduced below:- BOARD1NG/RUMMAGING OF THE SHIP: (i)............................. (ii)............................
(iii) ..........................
The importer/clearing agent while filing bill of entry shall declare, all the particulars of the vessel under clearance and any additional cargo on board the vessel. The importer/clearing agents shall also declare all the details of necessary/unnecessary tackle/stores and such other items along with their value, PCT heading and rates of Customs duty and sales tax leviable thereon on the bills of entry and get the same manifested provided it is accompanied by the following documents: - A) Builders plan or capacity plan or builders certificate evidencing LDT, Trim and Stability Book.
(B) Original Commercial Invoice.
(C) memorandum of Agreement.
(D) Bill of Sale.
(E) Import Licence.
(F) Letter of Credit.
(G) Photo copy of Lloyd register."
10. Above practice is going on since long which facilitates the Custom Department to compute the Custom Duty on the ships, according to law. In above context learned Deputy Attorney General placed on record a detailed statement to support his plea, which has not been contradicted by petitioners on filing rejoinder to counter affidavits.
11. It is to be seen that before demanding import tax, verification, valuation and assessment of the goods is to be carried out by the Appraiser of the Customs Department in pursuance of rule-8 of the Inspection, Valuation and Assessment of Imported goods Rules, 1994. Rule-8 (2)(a)(b)(c) being relevant is reproduced below:-
8. (1) Nothing................... (2) The Simplified procedure as described which the PSI company has issued a CRF:-
(a) The Customs at each Custom House or Station shall accept the bill of entry in respect of goods subject to pre-shipment inspection only if it is accompanied with the origional CRF issued by the PSI Company along with other requisite documents for registration under section 79 of the Act:
(b) The Customs shall verify the corrections of the bill of entry in all respects and ensure that the particulars of the bill of entry are in complete harmony with the supporting documents.
(c) In case the customs is satisfied that the bill of entry is complete and the customise duties and other taxes have been worked out in accordance with the CRF issued by the PSI Company, the bill of entry shall be allocated the registration number with date and marked "Allowed Payment" and returned to the designated authorised agent of the importer under second appraisement system; Provided that where the value of such goods determined under section 25 B of the Act is higher than the value of goods specified in CRF, the duty shall be levied at such higher value. In case, the Customs is of the view that the entries made in the CRF or in the bill of entry are not correct, the bill of entry shall be referred to the designated committee of resolution of the disputes if not agreed by the importer and the disputed bill of shall be processed under the first appraisement system specified in section-80 of the Act."
Rule-2(c) of Rule-8 confers statutory duty upon authorised officer to put mark of "Allowed Payment' on having been satisfied that Bills of entry is complete in all respects. It would mean that in absence of such mark, it will be deemed that assessment of duty has not been finalized. In the instant case, we failed to notice that customs duty/sales tax was in accordance to said provision, obviously for the reason that so tor customs department had not expressed its satisfaction about the declaration made by petitioners in the Bills of entry.
12. It may be seen that origional or certified copies of the Bills of entry were not produced, despite directions of Court, as such, petitions will be decided on the available material. However it is to be observed that deposit of customs duty or Advance Income Tax by the petitioners without permission of concern Authority has no significance.
13. Now we would proceed to examine that presuming Customs department had allowed the payment of duty and sales tax on satisfying that Bills of entry were in order, then what would be the procedure to compute Advance Income Tax. It may be seen that Collector Customs or his authorised officer is bound to compute such tax and collect it in the same manner and at the same time as provided under section 50(5) (b) of the Ordinance of 1979. In view of the plain language of the above section, collection of the Advance Income Tax is based on the amount levied and recovered as Customs Duty and Sales Tax.
14. Amongst petitioners, most of them had not paid total first installment of 34% of Customs duty and Sales tax before 30th June, 1995, in accordance with Rule-4 of the Deferment of Import Duty on Ships for scrapping Rules 1993 (as amended)
15. Since a special mode of making payment duty had been adopted by petitioners the before, Advance Income tax shall also be collected in the same manner and at the same time as clause
(b) of sub-section (5) of section-50 of the Ordinance of 1979,; -'provides. It is deemed appropriate to reproduce herein-below the plain and simple meaning of expression, 'same manner1 from the Blacks Law Dictionary 5th Edition.
Same. Identical, equal, equivalent. The word "same" however, does not always mean "identical". It frequently means of the kind or species, not the specific thing. When preceded by the definite article, means the one just referred to.
Two offenses are "the same" under the double jeopardy clause of the Federal Constitution unless each requires proof of an additional fact that the other does no. Ex parte Joseph Tax. Cr. App., 558 S.W.2d 891, 893. See also Jeoardy; Same offense.
Manner. A way, mode, method of doing anything, or mode of proceeding in any case or situation.
See also Custom and Usade".
Whereas expression 'at the same time! Has been interpreted in the case of Gaya Prasad Pandey and another vs. State of Bihar and others (AIR 1969 Patna 311). Relevant para therefrom reads as under; - "In my opinion, Rules 6 and 7 are not relevant to the issue, nor they support in any way the argument advanced by mr. Verma. The expression " At the same time", if we refer to Shorter Oxford English dictionary, third edition, means "during the same period, at the same moment, not before or after-". In may view this is the correct meaning of the expression used in the said rule. This also appears to be the intention of the Rule making Authority. Had it not been so. In proviso (iv) they would have clearly mentioned that the officer promoted shall rank senior to the officers requited, although substantively appointed on later date".
16. The above meanings persuaded us to hold that the Collector shall compute Advance Income tax during same period and at the ame moment, neither before nor after, in the identical method, in which customs duty and sales tax was collected. It is to be seen that relevant parts of statute relating to collection of tax should be interpreted in such a manner so that taxes are recovered without any complication, and while charging the tax there should not be any doubt concerning method adopted to achieve the object. Additionally tax can only be exacted against the tax payer on notifying the amount of tax levied against him, on the basis of data, so placed before the concerned authority.
17. As such, we are persuaded to hold that Advance Income Tax is to be charged on the basis of value of imported goods increased by Customs Duty and Sales Tax, worked out by the Customs Department at the rate which was prevailing at the time of allowing permission to Importer under Rule-2 (c) of the Inspection Valuation Assessment Rules, 1994. To make the payment in public ex- chequer.
18. Learned Deputy Attorney General placed on record statement containing details of amounts paid by petitioner against first installment of 34% under Deferment Scheme before 28th October, 1995. A perusal of which indicates that petitioners even did not make full payment of first installment of duty. Relevant entries from the said statement reads as under:- Department, petitioners had not controverted to above factual position. Thus it is decided that petitioners without making full payment of first installment ie. 34% of the Import duty had not authority to deposit with permission of Collector, 2% Advance Income Tax on the valuation of customs duty which they worked out themselves. As payment of customs duty sales tax under Deferment Scheme is relatable to the computing and collecting of Advance Income Tax, therefore petitioners are liable to pay such tax at the rate which will be prevailing when remaining amount of the duty shall be paid by them.
19. In view of above discussion it is held that Advance Income Tax shall be computed according to the method, prescribed under section-50(5) (a)(b) of the Ordinance of 1979 and collection of the tax shall be made on the amount of duty which actually had been aid by Importer under the sanction of Tax Levying authority ie. Collector customs at the rate prevailing at the time when such amount is paid and there is not concept of self execution of above provisions. Under the circumstances, official respondents were within their lawful right to demand Advance Income Tax, at the rate of difference of 2% from petitioners after 01st July, 1995, on promulgation of Finance Act 1995. Because petitioners have not fully discharged the liability to pay Advance Income Tax under the provisions of section-50(5) (a) (b) of the ordinance of 1979, therefore, no vested right had accrued to them, and the judgments cited at bar on behalf of petitioners are of no help to them.
20. For the above discussion, petitions are dismissed. However, we leave the paries to bear their respective costs.