' NAIMUDDIN, J.-By teas petition under Article 199 of the Constitution the petitioner who imported iron and steel scrap under Import License No, 618185 issued by the Chief Controller of Imports and Exports, Government of Pakistan, has challenged the levy and charge of regulatory duty on the goods imported by .Him at the rate of 621 per cent. Under Notification S. R. O. 910(1)/75 .Published in the Gazette of Pakistan, Extraordinary (Part II), bearing the date of August 22, 1975.
2. 1 he facts giving rise to this petition briefly steted, are t The petitioner imported iron and steel scrap for re-rolling of the value Rs, 9,97,899 under the aforesaid import licence. The ship carrying the goods arrived in the port of Karachi on 25th October, 1975. The petition wanted to file bill of entry on the same date but the Collector of Customs, Karachi, respondent 1, did not accept it as the petitioner wanted to pay 25 per cent. Duty in accordance with Notification S. R.
6. 983(1)/74 published in the Gazette of Pakistan, Extraordinary (Part II) dated 18th July, 1974, but respondent No, 1 claimed the duty at the rate of 62* per cent. Which includes the regulatory duty of 374 per cent. On the basis of Notification S. R. O. 910(1)/75 published in the Gazette of Pakistan, Extraordinary (Part II) bearing the date of 72ad August, 1975, which reads as follows : "S. R. O. 9101)/75.-In exercise of the powers conferred by subsection. (2) of section 18 of the Customs Aet, l969 (IV of 1969 e the Federal Government is pleased to direct that regulatory duty shall be levied en all items of iron and steel scrap for re-rolling falling under the respective heads of Chapter 73 of the First Schedule to the Act so as to increase the rate of duty to 624% ad raloem in case of items the rate of which is lower than the said rate."
' The petitioner has, therefore, filed the present petition challenging the levy and charge of duty under the aforesaid notification.
3. We have heard Mr. Hassan A. Shaikh, Advocate for the petitioner, and Mr. Shah Jamil Alam, deputy Attorney-General, for the respondent
4. Mr. Hasten A. Shaikh, Advocate for the petitioner, has raised twofold contentions before us. The first contention is that the Federal Government, resnonclent 2, has no pourers at all to levy the regulatory duty. The second contention is that respondent 1 could net claim and charge the regulatory duty because at the relevant time the notification under which the regulatory duty has been levied was not published.
' S. So far as the first contention is concerned the learned Advocate for the petitioner submitted that the Federal Government has no powers to impose the regulatory duty but When it was pointed out to him that the same has been levied pursuant to the powers conferred on the Federal Government under subsection (2) of section 18 of the Customs Act, he argued that the Federal Legislature has no powers to impose regulatory duty as according to him, under the Fourth Schedule to the Constitution the Federal Legislative List does not include the matter relating to 'regulatory duty'. The learned counsel refer: leg to item No, 43 in the Fourth Schedule which relates to duties of customs, including export durties orgued that this item does not contain the expression 'regulatory duty'. However, in our opinion, the regulatory duty is covered by the expression 'duties of customs' for the term 'custom' is usually applied to those taxes which are payable' upon the articles and commodities imported or exported. In Wilda H. Marriott v. Frederick W. Brune (1)
Woodbury, J. At page 631 of the report observed : "Indeed, the general definition of customs confirms this view ; for, says McCulloch (Vol. I, p. 541): 'Customs are duties charged upon commodities on their being imported into or exported from a country',"
' The word 'duties' according to Black's Law Dictionary and Aaron B. Cooky v. Board of Wardens of the Pori of Philladalphia (2) in the most usual signification is the eynonyin of imposts or customs, but it is some time used in a hroader sense, as including all manner of taxes, charges, or govern- _ mental imposition*.
(1) 50 U S 617=9 H 2b2 (2) 13 L Ed. 996 ' Henry Campbell Black in his Dictionary has referred to an American case namely, United States v.
Siseho (1), according to which the expression "customs duties" means, "taxes on importation of commodities ; the tariff or tax assessed upon merchandise imported from or exported to a foreign country."
It is not denied by the learned counsel for the petitioner that the regulatory duty is levied on the import of articles mentioned in the Firs Schedule to the Finance Act, 1975, into the country as provided by or under subsection (2) of section 18 of the Customs Act, 190 and, therefore, in our opinion, it clearly falls within the expre;sion "duties of customs" and it does B not make any difference by whatever name they are levied so long as the duties are levied on the import or export of articles metioned in the First Schedule in accordance with the provisions of subsection (2) of section 18 (ibid) as it is the pith and substance of the enactment which is to be looked into.
Therefore, we overrule this contention.
6. Now, coming to the second contention, namely, that the Collector of Customs, respondent No, 1, could not claim and charge the regulatory duty, the submission of the learned counsel for the petitioner is that under subsection (2) of section 18 (ibid) regulatory duty could be levied only by notification in the official Gazette and the Notification S. R.
0. 910(0/75 published in the Gazette of Pakistan, Extraordinary, Part II, bearing the date of 22nd August, 1975, was in fact not published till 25th October, 1975, and therefore the petitioner was net liable to pay the regulatory duty in accordance with this notification.
7. Therefore, the question which falls for our consideration is when the notification in question levying the regulatory duty which could not be imposed except by notification in the official Gazette, was published. The expression 'bt notification in the official Gazette' case up for consideration before a Division Bench of the Bombay High Court in case of BeekrIshan Anant Hirlekar v. Emperor (2) wherein Beaumont, C. J. At page 133 of the report observed as follows : "Now, I can find nothing in the Act which make, the proof of knowledge in the accused that the association is unlawful a condition precedent to a prosecution for being a member of such association. But where an association heretofore lawful is made unlawful, it appears to me that the most elementary principles of juitice and fairplay require some notice of illegality to be given to the members of the association so that they may regulate their conduct accordingly. I think that the Legislature has provided for such notice by making it necessary to notify the declaration cf the illegality in the official Gazette. The official Gazette is the normal means of communicating Government intentions to the public.
' The learned Government Pleader has argued, and I think that the paucity of evidence in this case compelled him to argue, that all that is required is that the declaration should appear, that is to say, that it should be inserted in the Gazette. I do not take that view. The word used in section 16 is "notification" and not "insertion". "Notification" is defined in Webster's Dictionary as : "Act of notifying ; act of making known an intimation or notice 1
(1) D C W 262 F. 1001 t2) AIR 1931 Bom. 132 ' esp., act of giving official notice or information by words, by writing, or by other means" ; ' so that the essence of notification is the giving of notice, and, in my opinion, the words "by notification in the official Gazette" mean simply "by giving notice in the official Gazette". One can illustrate the Point under consideration by a simple illustration. Supposing the Government make a declaration that a particular association is unlawful and instruct the Government printers to print an extraordinary official Gazette containing that declaration. Supposing that some change in the political situation then takes place, and the Government alters its view. It communicates with its printers and finds that the Gazette has been printed and is ready for publication, but that nothing further has been done. The Government then instructs the printers to send all the copies to the Secretariat, and there they are retained. It seems to me that in such a case as that it is quite plain that the declaration making the association unlawful has not been notified in the Gazette, and the association has not become unlawful. But if the Government view is right, then in such a case the association has become unlawful though nobody knows the fact except the Government, and any body may be prosecuted for beh-g a member of that association without having had any opportunity of learning that the association has become unlawful. In my opinion this is not de law, and in order to prove that an association has been declared unlawful under the Criminal Law Amendment Act of 1908, the Government must not only insert the declaration in the officisl Gazette, but must publish the Gazette in the manner usually adopted for publishing such Gazette, and allow a reasonable opportunity to people concerned to see the Gazette. If anyone suspects that an association of which he is a member is likely to be declared unlawful, he can take steps to ascertain the manner in which the Gazette is published, and to inform himself of the contents of any Gazette and if he does not do that and is prosecuted for being a member of an unlawful association, he has only himself to blame for not having taken the precautions which the statute enables him to take."
8. The case of Ralkrishan Anant Hirlekar was followed by the Bombay High Court in another case reported as Emperor v. Dhavnonand Kosambl (1) wherein the accused was charged with being a member of an Association which was declared unlawful by a notification published in the official Gazette The question arose whether the Government Gazette whereby the Association case declared unlawful had been issued to the public or not so as to make the accused liable for being a member of unlawful assembly. It was pointed out by the same Division Bench which decided the case of Balkthhan Anant Hirlekar v. Emperor that it did not matter whether the Government Gazette had been issued to the public or not so long as a copy of the Gazette was actually shown to the accused.
9. The decision in Balkrishan Anant Hirlekar was noticed by their Lordships of the Supreme Court of Pakistan in the Province of East _ ;Pakistan v. Major Nawab Hassan Askari and others (2) wherein it was observed
(1) AIR 1931 Bora. 203 (2) PLD 1971 SC 82 ' by his Lordship Waheedaddin Ahmed, I., who wrote the opinion of the Court, at page 92 of the report as follows :- "In my opinion, in order to prove the publication of a notification it is not only necessary to prove that the notification was inserted in the official Gazette but there should also be proof that it was published in the manner usually adopted for publishing such documents."
10. Therefore, in the light of the above observations of heir Lordships of the Supreme court and Beaumont, C. J. In Balkrishan Anant Hirlekar v. Empgror we have to examine when the levy of regulatory duty was in fact notified in the official Gazette as it is not the case of the respondent that the relevant Gazette was shown to the petitioner.
11. In para. 10 of the petition it is stated that to the best of the knowledge of the petitioner no notification imposing the regulatory duty has been issued in the Gazette of Pakistan either on 22-8 1975 or till 29-10.1975 which is the date of filing of the petition. In reply to the petition the respondents have filed the following affidavits and counter-affidavit.
(1)The counter-a davit of Muhammad Akmal, Assistant Collector of Customs, Karachi, dated 5-12- 1975, wherein he has stated that the notification dated 22.8-1975 was published in the Gazette of Pakistan. This affidavit does not give the date of publication of the Gazette.
(2)The affidavit of Muhammad Wail Khan, Manager of Publications, Central Publication Branch, Government of Pakistan, Karachi, dated 16-4-1977, wherein he has stated that all Extraordinary Gazettes with the exception of a few emanating from the Federal Government Offices at Karachi, ate printed at the Printing Corporation of Pakistan Press, Islamabad, and soon after their printing, the Gazettes are passed on to the Stationary, Forms and Publications Depot, Rawalpindi, for distribution and sale throughout Pakistan, and that the sale of the Gazettes is open to general public and any one desirous to procure the same can do so at will.
(3) The affidavit of Muhammad Hasnain, Assistant Controller of Stationary Forms and Publication Depot, Rawalpindi, wherein he has stated that the Printing Corporation of Pakistan Press sends copies, of the Gazettes to the Assistant Controller of Stationary Forms and Publication Depot, Rawalpindi, for distribution and sale to the public-and that any member of the public in Pakistan can purchase the copies of the said Gazette from the office of the Assistant Controller of Stationary. Forms and Publication, Rawalpindi, if it is not available in any other town. He further stated that the Gazettes which are published at Islamabad are sent directly to the Assistant Controller of Stationary. Forms and Publications Depot, Rawalpindi, for distribution and sale to public and that there are some regular subscribers from the public to the Gaaetes to whom the copies are forwarded by the said Depot and individual members of public at Rawalpindi or elsewhere in Pakistan also get copies of such Gazettes on request from the said Depot and that the Depot also sends copies of Gazettes to their agents on demand in various places in the country. He has also stated that the same procedure was followed In respect of Notifications Nos. S. R. O.
P09(1)/75, 910(1)/75 and en, 911(1)/75, all dated 21-8-1975, which were received in the said Depot berr on the 16th October, 1975, and from which date they were available for sale to the public.
12. On the affidavit filed by Muhammad Alan, Mr. Hassan A. Shaikh, learned counsel for the petitioner, was allowed to cross-examine Muhammad Hasnain, who, in his cross-examination, produced letter No, 1536/GAZ/74, marked Exh. 1/1, according to which the Depot was allowed to sell 50 copies of the Gazette Extraordinary to the public or the agents, and who in reply to the questions put to him by the Court stated that out of 2550 copies of each of the Gazettes containing the three notifications, in-eluding the one pertaining to this petition, were received by his department. Out of which the department despatched 2161 copies to the subscribers on 20-10-1975, and that the Chamber of Commerce, Karachi is one of the subscribers.
13. From the above-mentioned affidavits and cross-examination cf Muhammad Hasnain what is established is that copies of the Gazette containing the impugned notification were in the Depot at Rawalpindi OD 16-10-1975 from which date they were available for sale and on 20.10-1975 copies were despatched to the subscribers including the Chamber of Commerce and Industry, Karachi, and these must have been in the ordinary course received by the subscribers by 22-10-1975. Since the articles in Question, according to the statement made in para. 7 of the petition, were imported into Karachi on 25.10-1975, we Sind the Gazette containing the notification although not published on 22-8.1975, the date printed thereon, was available for sale at Rawalpindi and also with more than 2000 subscribers including the Chamber of Commerce and Industry, Karachi, 3 chats before the date of import of the articles.
14. Na affidavit or counter-affidavit or affidavit-in-rejoinder was filed by the petitioner nor was any other evidence produted by him in rebuttal, However, Mr. Hassan A. Shaikh relied upon the following affidavit and counter-affidavit filed by or on behalf of the respondents in Constitution Petition No, 228 of 1976, in support of his contention that t 11 the ,eats of import of the goods Le. 25-10-1975, the impugned notificutien was not published in the official Gazette. Photostat copies of these affidavits have been placed, with our permission on the record of this petition :
(1) The affidavit of Aziaur Rahman, Manager, Printing Corporation of Pakistan Press, University Road, Karachi, who simply stated that the Gazette, Extraordinary, containing the impugned notification was printed at the Printing Corporation of Pakistan Press, Islamabad and after printing the copies of the printed Gazette are distributed to a number of depatements including the Meleager, Central Publication Branch, Ahmed Chambers, Tariq Road, P. E. C. H. S., Karachi for sale and distribution to public.
(2) The counter-affidavit of S. Abul Hasa% Deputy Controller (Headquarters), Department of Stationary and Forms, Government of Pakistan, Karachi; wbo has stated ealaireiii that the Railway feeceipt No, Y. 167578 dated 21-10-1975 along with the Press Dematch Voucher No, 2134 dated 22- 10-1475 of the consignment of the copies of the Gazette of Pakistan, Extraordinary, dated 224-1975 were received on 25-10.1975, and the aforesaid receipt was forwarded by his Branch to the Central Publication Breech, Ahmed Chambtrs, Tariq Road, P. E. C. H. S., Karachi who actually received the Fame on 7-11-1975.
(3) The affidavit of Faheemuddin Ahmed, Manager, Printing Corporation of Pakistan Press, Islamabad who has stated therein that the Gazette containing the impugned notification was printed at the Printing Corporation of Paltistati Prets, Islatitsbad on 17-9-1975 and the copier or tbe Gazette after being protege dispatched to the Stationary & Forms Office, Rawalpindi on 16-!0-1975 and the receipt thereof was acknowledged by them on 22-10-1975.
15. On the basis of the affidavit of Mr. S. Abul Hasan mentioned hereinabove the learned counsel argued that since the copies of the Gazette containing the impugned notification were received by the Central Publication Branch, Ahmed Chambers, Tariq Road, P. E. C. H. S., Karachi on 17-11-1975, therefore the Gazette cannot be deemed to have been published before the date as it was available for sale in Karachi only from that date.
16. However, in our view, the date of receipt and availability of copies of the Gazette containing the impugned notification at the Central Publication Branch, Ahmed Chambers, Tariq Road, P. E. C. H. S , Karachi for sale i,e, 7-11-1975 is not the material date unless we were to hold that liability for payment of regulatory duty would arise only when copies of the Gazette are available for sale or otherwise at particular place. But it is not reasonably possible to hold so for the reason that the levy of the regulatory duty becomes effective immediately on the publication of the Gazette containing th notification and its availability anywhere in Pakistan, for the liability arises on publication of the notification in the Gazette, and its availability anywhere in Pakistan, and not on its availability at a particular place for if the levy of the duty is made dependent on the availability of the copy of Gazette at a particular place then The consequence would be that no such duty would be payable by the importers of the articles of that place where copy of the Gazette is not available, but the same would be payable by the importers of such articles of places where the copy of the Gazette is available, a consequence which is repugnant to reason, justice and equity.
17. In view of the uncontroverted evidence of Muhammad Hasnain that copies of the Gazette were available for sale in Rawalpindi on 16-10-1975, and were sent to more than 2000 subscribers, including the Chamber of Commerce & Industry, Karachi, on 21.10-1975, much before the date of import of the articles on 25-10-1975, we find that the requirements of the rule laid down by their Lordships of the Supreme Court in the Province of East Pakistan v. Major Nawab Hassan Askari and others, were complied with in this case and, therefore, there is no substance in this contention also.
18. No other ground or contention was raised before us.
19. We accordingly, dismiss this petition with costs.