NAZIM HUSSAIN SIDDIQUI, J.---This appeal is directed against judgment dated 3-1-1998 of the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, whereby the appeal of the respondent was allowed and the order dated 14-9-1994 passed by the Collector of Custom Preventive, Karachi. Was set aside. The facts relevant for decision of this appeal are as follows:
2. Respondent Saleem Adaya imported a new Mercedes Benz Car, type C-200. Valued at Rs,13,50,536 and claimed exemption of customs duty, sales tax and Iqra charges under SRO No,783(1)/92, dated 19-8-1992, hereinafter referred to as said SRO, and got the vehicle released against ITC exemption 13-D of SRO No,599(1)/91 dated 1-7-1991. The State .Bank of Pakistan in its letter No,3913 FEP-16(6)HR-94, dated 12-5-1994, explained the scope of said SRO. Thereafter, a show-cause notice dated 6-8-1994 was issued to the respondent stating therein that he was not entitled to the benefit of said SRO and that he had caused loss to Government revenue to the extent of Rs,20,25,804 as customs duty. Rs,5,08,407 as sales tax, Rs,67,525 as Iqra charges and Rs,80,938 as fixed sales tax, total Rs,26,96,251. The respondent submitted his reply against said show-cause notice on 5th September, 1994. Learned Collector of Customs by order dated 14-9- 1994 confiscated said vehicle, under clauses 9 & 14 of section 156(1) of the Customs Act, with an option to the respondent to get the same released on payment of fine equal to 20% of ascertained value in addition to payment of customs duty and other taxes leviable thereon on production of necessary import permit from Ministry of Commerce.
3. The respondent challenged said order before the Customs, Excise and Sales Tax Appellate Tribunal, Karachi, and the Tribunal by impugned order allowed the appeal.
4. In order to appreciate the points involved in this matter, it would be advantageous to reproduce the said SRO and the relevant portion of the State Bank of Pakistan's letter dated 12th May, 1994, which are as follows:- Number Custom CBR IDB GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE AND ECONOMIC AFFAIRS (REVENUE DIVISION)
Islamabad, the 19th August, 1992 NOTIFICATION (CUSTOMS)
S.R.O.783(1)/92.--In exercise of the powers conferred by section 13 of the Customs Act, 1969 (IV of 1969), subsection (1) of section 13 of the Sales Tax Act, 1990, and subsection (2) of section 5 of the Finance Act, 1985 (I of 1985) the Federal Government is pleased to exempt import of vehicles specified in column (3) of the table below, from whole of Customs duty leviable under the First Schedule to the Customs Act, 1969 (IV of 1969) sales tax and Iqra surcharge, subject to the condition that the amount of foreign exchange in US dollar specified in column (2) of table below has been remitted through the regular banking channels and the importer produces certificate from the bank in accordance with the instructions issued by State Bank of Pakistan from time to time to the effect that the requisite amount of foreign exchange had been remitted by him through said bank as mentioned below:-- S.NO.AMOUNT REMITTED IN US DOLLAR VEHICLES
(i) (ii) (iii)
(1) 200,000 or more Car 1000 cc
(2) 500,000 or more Car 1200 cc
(3) 600,000 or more Car 1300 cc
(4) 1,000,000 or more Car 1600 cc
(5) 2,500,000 or more Car 2000 cc
(6) 5,000,000 or more Car above 2000 cc Relevant portion of letter dated 1,2-5-1994 of State Bank of Pakistan: "The remittance sent by the Pakistanis working/settled abroad to the beneficiaries residing in Pakistan for payment in Pakistani rupees or for credit to the rupee account of the remitter or beneficiary are classified as 'Home Remittances'. In the cases where remittances have been received on account of the goods exported from Pakistan on account of services rendered they are not eligible for the duty exemption under this scheme.
5. Mr. Makhdoom Ali Khan, learned counsel for the respondent, as a preliminary objection, challenged the maintainability of this appeal on the ground that it was time-barred and valid explanation for condonation of delay was not furnished. We propose to deal with this point first.
6. The impugned order was passed on 3-1-1998, and the appeal was presented before this Court on 27-3-1998. The appellant in his application under section 5 of the Limitation Act has not specifically mentioned that by how many days the appeal was barred by time. He, however, maintained that impugned order was received in his office on 28-2-1998 and thereafter it was sent to the Central Board of Revenue, Islamabad, for obtaining necessary instructions, which were received on 21-3-1998 and then the appeal was filed. The appeal under section 196 of the Customs Act was to be preferred within 30 days of the impugned order. Instead, it was filed on 27-3-1998.
The record shows that on 11-2-1998 its copy was supplied to the appellant. Calculating from said date it should have been filed on or before 13th March, 1998. It seems to be time-barred by 14 days.
The explanation for delay is that the time was spent in completing formalities and obtaining necessary instructions from the Central Board of Revenue, Islamabad.
7. Mr. Makhdoom Ali Khan, contends that Customs Act is special law and it being so section 5 of the Limitation Act is not attracted as its applicability is excluded by section 29 of said Act. In support of this contention, he cited (1) Syed Muhammad v. Mazhar Ali Khan PLD 1981 Kar. 76, (2) Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88, (3) Ali Muhammad and another v. Fazal Hussain and others 1983 SCM R 1239. These cases were under Sindh Rented Premises Ordinance, 1979/West Pakistan Rent Restriction Ordinance, 1959. The ratio decidendi of these cases is that they being under special law, Section 5 of the Limitation Act stands excluded by virtue of section 29(2) of the said Act. Customs Act being a special law, section 5 of the Limitation Act will also not apply to the cases governed by Customs Act.
8. Mr. Makhdoom Ali Khan also cited (1) Dr. Hussainullah Khan v. Haji Abdullah Jan 1978 SCM R 457;
(2) Mst. Rukhsana Ahmed v. Tariq Attaullah 1980 SCM R 36; (3) Commissioner of Income Tax v.
Raees Pir Ahmad Khan 1981 SCM R 37; (4) Government of Punjab through Secretary (Services), Services and General Administration and Information Department, Lahore and another v.
Muhammad Saleem PLD 1995 SC 396; (5) Federation of Pakistan through Secretary of Foreign Affairs, Government of Pakistan and 5 others v. Jamaluddin and others 1996 SCM R 727/745 para.14;
(6) Federation of Pakistan v. Niaz Ahmad 1997 SCM R 959 and (7) Central Board of Revenue, Islamabad v. M/s. Raja Industries Limited 1998 SCM R 307. The ratio decidendi of these cases is that Government on the question of limitation could not be treated differently from ordinary litigant. .Further, it was observed that where Government in spite of enormous resources and facilities at its disposal if it still files case beyond the period of limitation detrimental to its own interest the opposite-party cannot be penalised for its negligence and that for condonation the delay of each and every day must be explained. It is significant to point out that in case of Hussainullah Khan, the delay was of only seven days. In case of Rukhsana Ahmad the High Court held that there was a delay of one day for which no satisfactory explanation was offered and this finding was maintained by the Supreme Court. In all aforesaid cases delay was not satisfactorily explained.
9. In this case leaned counsel for the appellant seeks condonation of delay on the oft repeated ground of seeking instructions from the higher authorities and of completing the formalities. This by itself, as held by the Supreme Court in aforesaid cases, is not a valid ground. The appeal is time- barred and no satisfactory explanation for condonation of delay has been offered.
10. On merits, Mr. Shakeel Ahmed, learned counsel for the appellant argued that exemption from custom duty and other taxes, under said SRO, is only applicable to the remittances, which are covered by the State Bank's letter, referred to earlier. Learned counsel also contends that the respondent was not settled abroad and had not sent "home remittances" himself and the condition precedent for applicability of said SRO was that the remittances should have been sent by a Pakistani working/settled abroad.
11. We have examined the above contentions and are of the view that the State Bank's letter is not in consonance of said SRO, which clearly lays down only two conditions namely, that the amount of foreign exchange in US Dollars specified in column 2 of table as shown in said SRO must have been remitted through the regular banking channels and second condition is a production of certificate from the Bank concerned to the effect that requisite amount of foreign exchange had been remitted by him through said Bank. It is not disputed that the respondent had remitted the requisite amount nor the fact that concerned bank viz. Faisal Bank, Dubai, had issued such certificate. Both conditions precedents were fulfilled by the respondent.
12. State Bank of Pakistan's letter dated 12th May, 1994 is not a corrigendum of said SRO and on the contrary it militates against it basic concept. In said SRO neither the term "Home Remittances" has been defined nor it requires any sort of verification from State Bank. On the basis of extraneous material the scope of said SRO cannot be extended or limited. It is to be read as it is and not in any other manner, unless so is permitted by law. It is significant to point out that the bill of entry for clearance of said vehicle was filed on 20-3-1994, while said letter of State Bank was issued on 12th May, 1994. The letter of the State Bank of Pakistan is not more than an executive instruction, as such, it could not be retrospective.
13. During the course of arguments, learned counsel for the appellant conceded that above facility was extended in four other cases, but added that action was being taken against the concerned importers. He however, has not pointed out that so far what action was taken against them. Prima facie, it appears to be a case of discrimination. The same facility should have been extended to the respondent also as was done in other four cases. On merits also, this appeal cannot succeed.
14. On 29-9-1998 we had, after hearing learned counsel for the parties, dismissed the appeal in limine and these are reasons for the same.