1. ' This Appeal under section 196 of the Customs Act, 1969, hereinafter called the Act, is directed against the Order dated 3-6-1998, passed by the Customs, Excise and Sales Tax Appellate Tribunal, whereby the Appeal of the Appellants filed against the order dated 5-10-1995 of Collector of Customs Preventive was dismissed.
2. ' The appellants, Messrs Alcatel Pakistan Limited, imported a consignment of two Containerised Telephone Exchanges with accessories vide I.G,M. No,D-4200 of 1993, dated 29-4-1993 and D-4250 of 1993, dated 29-4-1993, Index No, 1 classifiable under PCT heading 8517.9000, carrying customs duty and Sales Tax at rate of 80% and 15% respectively. On 2-5-1993, the Appellants requested for release of the consignment on prior release basis. Their request was acceded to with the condition that they would file bill of entry and complete it within three days from 2-5-1993. The appellants filed bills of entry on 4-5-1993 claiming benefit of S.R.O. 1067(i) of 1992, dated 2-11-1992, hereinafter referred to as said SRO, under which Customs duty in excess of 30% and sales tax are exempted in full. It reads as under:-- "In exercise of the powers conferred by section 19 of the Customs Act (IV of 1969), and subsection
(1) of section 13 of the Sales Tax Act, 1969 and in suppression of this Ministry's Notification No, 943(I) of 1992, dated the 28th September, 1992, the Federal Government is pleased to direct that articles imported for installation and commissioning of telecommunication systems shall be exempted from so much of the customs duty chargeable thereon as is in excess of 30% ad valorem and whole of sales tax leviable thereon.
3. ' Provided that the articles imported by importers other than the Pakistan Telecommunication Corporation, Special Telecommunication, Organization and Pak Datacom (Pvt) Ltd. Shall be eligible for exemption subject to production of a certificate for each consignment from the concerned General Manager of the Pakistan Telecommunication Corporation to the effect that the articles imported meant for installation and commissioning of telecommunication system as per contract awarded by the Pakistan Telecommunication Corporation or licences issued by the Ministry of Communications."
4. ' It is alleged that after filing the bills of entry no progress was made for more than 18 months and an information was received that appellants had cleared and sold said consignments without payment of duty and taxes and misused the facility of 'prior release system' When the case was being investigated and proceedings initiated against the appellants, they took bill of entry to Export Collectorate and sought its processing under SRO.818(i) of 1989, dated 9-8-1989 on the plea that the goods would be sent back to the Exporters and claimed benefit of two SRO's one relating to temporary import and the other relating to import for PTC. Later on, the appellants confined their case to said SRO quoted earlier.
5. ' On completion of investigation, the appellants were directed to pay duty and taxes amounting to Rs,4,64,82,813. Thereafter, the appellants paid an amount of Rs,1,64,34,942 which was accepted provisionally. Learned Collector Preventive in his order dated 5-10- 1995 held that mala fides on the part of the appellants, to evade duty and taxes, were established without any shadow of doubt. He also held that, benefit of said SRO, was not available to appellants as Contract was signed on 18-9- 1994. He also held that, as per section 3(i) of the Imports and Exports (Control) Act, 1950, the Importers should get permission from Chief Controller of Imports and Exports, which was not done in this case. Since the Importers failed to fulfil, the conditions of said SRO and also contravened the provisions of sections 32 and 16 of the Act read with sections 32 and 16 of the Imports and Exports (Control) Act, 1950, Learned Collector ordered confiscation of said goods with an option to get the same redeemed against a fine of Rs,1,00,000 (Rupees one hundred thousand) and also to pay the balance of Rs,4,64,82,813.
6. ' Appeal against above order was dismissed by learned Tribunal, agreeing with the findings of learned Collector of Customs.
7. This appeal has been preferred, under section 196 of the Act. The scope of this section is limited. It only permits Appeal in respect of any question of law, arising out of an order under section 194-B viz; order of Appellate Tribunal. Mr. Maldtdoom Ali Khan, learned counsel for appellants raised the following questions of law:--
(1) Whether the goods having been imported by PTCL and having been installed and commissioned benefit of said SRO could be refused on the ground that a certificate to that effect was not produced?
(2) Whether in spite of substantial compliance of said SRO still the benefit of said SRO could be refused?
(3) Whether the Contract was concluded by exchange of letters and subsequent act of reducing it into a single document was only to formalizing the transaction and did not amount to execution of a new contract?
(4) Whether the principle of promissory estoppel was attracted in this case?
8. ' In support of above, learned counsel cited (1) Hirjina Salt Chemicals (Pak) Ltd v. Union Council Gharo and others 1982 SCM R 522; (2) Commissioner of Income tax v. Olympia Watch Co. 1987 PTD 739; (3) Messrs Army Welfare Sugar Mills Ltd v. Federation of Pakistan 1992 SCM R 1652; (4) Nasim- ul-Haq Malik v. Chief Secretary, Government of Sindh, Karachi 1996 SCM R 1264 and (5) State Bank of Pakistan v. Messrs Faisal Spinning Mills Ltd. 1997 SCM R 1244.
9. ' In case of Hirjina Salt Chemicals (Pak) Ltd. It was held that rules made under statute could not override or prevail upon provisions of parent statute. In case of Commissioner of Income Tax, it was held that a remedial statute is to be liberally construed. In case of Messrs Army Welfare Sugar Mills Ltd, it was observed that doctrine of promissory estoppel is available in Pakistan against the Government and its functionaries subject to legal limitation. In case of Nasim-ul-Haq Malik, it was observed that nothing is to be read in a statute, which is not expressly enacted therein. In case of State Bank of Pakistan, it was held that there is no legal bar in respect of a Notification, which purports to confer the benefit retrospectively.
10. The moot point involved in this matter is the interpretation of said SRO. It permits import of articles required for installation and commissioning of Telecommunication system and granted exemption of the Custom duty as was in excess of 30% ad valorem. This is, however, subject to production a certificate from General Manager of Pakistan Telecommunication Corporation (PTC), which was required to be produced on the date of import, when the rate of duty was to be determined under section 30 of the Act, Further, such certificate of the G.M. PTC had to be based upon a contract awarded by the PTC or a licence issued by the Ministry of Communication. The date of import was 29-4-1993 and on that particular date there was no contract. Rate of duty was to be determined, under section 30 of the Act, on the date on which bill of entry was presented.
11. It is settled proposition of law that in a taxing statute one has to look at what is clearly stated therein. According to the Rules of Interpretation, there is no room "for any intendment, there is no equity about a tax. Nothing is to be read in and nothing is to be implied" In the case reported as Partington v. Attorney General (1969) LR 4 HL 100, Lord Cairns observed:-- "As I understand the principle of all fiscal legislation, it is this: If the person sought to be taxed comes within the letter of the law, he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject in free, however, apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute."
12. Coming back to said SRO, it is noted that appellants at the time of actual import were not in possession of the documents, which were required as a condition precedent for availing its benefit.
13. ' Mr. Makhdoom Ali Khan, learned counsel for the appellants strenuously argued that PTC's letter dated 7-3-1993, in fact, was an Agreement to Sell and subsequently Contract, dated 18th September, 1994 was executed between the parties. According to learned counsel, said letter being like an Agreement to Sell, it could be inferred that it was a part of contract and the contract which was materialized later on, could be treated as being available to appellants for having the benefit of said SRO. We are of the view that this plea has no substance for simple reason that letter, dated 7-3-1993 was not an Agreement to Sell. On the contrary, as its subject shows, it was simply test/trial on no cost no obligation basis. It is as follows:--
(1) "Reference your letter No, AF/QT/93-434, dated 3rd March, 1993 on the above subject.
(2) Your offer for 2 Containerized Digital Exchanges for trial on no cost no obligation basis vide your letter No,AF/QT/93-434, dated 4th March 1993, is acceptable to PTC subject to the following-- (2.1) PTC shall not bear any obligation regarding import, installation, testing and re-export of the exchange.
14. (2.2) PTC shall provide space for installation of the equipment, space on its MDF for termination of the blocks for subscriber loops and junctions (120 ohms balanced), commercial power and may provide termination point for terminating D.C. Supply power cable.
15. (2.3) The configuration shall be for 4000 and 2000 subscriber line units and associated junctions requirement (equipment only).
16. (2.4) Arrangements for post processing of the AMA tape both Hardware. Software shall be Alcatel CIT responsibility in case PTC does not have arrangements for processing the same.
17. (2.5) The Exchanges are purely for trial and if they are successful then PTC will make Alcatel responsible for future supply of container exchanges in Pakistan on competitive basis and PTC will pay for these exchanges. If these exchanges are not successful there will be no obligation to buy these exchanges by PTC.
(3) Removal of the deficiencies in respect of the interfacing and PTC specifications and demonstration of the exchanges functions shall be entirely Alcatel CIT responsibility. This will not place PTC under any obligation for the procurement of Container Exchanges against PTC Tender.
18. This test trial of Container Exchanges will not affect the PTC's Established procedures of standardizing and adopting different switches for its network.
19. ' Best regards.
20. (Sd.) Khalid Jalil Director General (Plans)
21. The scope of said SRO cannot be extended to the extent of nullifying effect of section 30 of the Act, which categorically lays emphasis on the date of determination of rate of import duty, which for all practical purposes is the date on which bills of entry is presented. Otherwise, is not permissible under law.
22. ' Conclusion, therefore, would be two Containerized Digital Exchanges were imported for the purpose of trial only and the decision to retain them on permanent basis does not ipso facto, change/modify the terms and conditions of said SRO. Alleged subsequent compliance of said SRO is of no legal effect, nor the conditions of production of said certificate could be waived, as it would have the effect of completely changing the context of said SRO. For all practical purposes Contract, dated 18th September, 1994 was a new Contract and its scope could not be extended as to cover up said SRO. Above legal pleas have no substance.
23. As regards the principle of promissory estoppel, it is noted that said principle is not attracted to the circumstances of this case. For its applicability, it was necessary to show that the appellants were not aware of the true state of things. In fact, they knew everything and no misrepresentation was ever made to them. In the case reported as Naseer Ahmed and another v. Asghar Ali 1992 SCM R 2300, it was held that benefit of above rule could be availed only by that party, who, while acting on the representation of another person had changed its position to its prejudice, but if correct factual position was within the knowledge of the represented or would have come to his knowledge on making enquiry as he ought to have reasonably made, above rule was not attracted. There is also no force in this contention.
24. In consequence, we do not find any merit in this Appeal and the same is dismissed.