S.No. Appeal No.Form-E No.Date of impugned orderPenalty imposed
1. 12 of 1998 0004227 27-12-1997 Rs .1 ,70,000
2. 13 of 1998 0004231 27-12-1997 Rs.1,65,000
3. 14 of 1998 0004505 27-12-1997 Rs.45,000
4. 15 of 1998 0004233 27-12-1997 Rs.1,60,000
5. 16 of 1998 0004831 27-12-1997 Rs.45,000
6. 17 of 1998 0003682 27-12-1997 Rs.4,40,000
7. 18 of 1998 0005124 27-12-1997 Rs.45,000
8. 19 of 1998 0004834 27-12-1997 Rs.85,000
9. 20 of 1998 0004506 27-12-1997 Rs.1,30,000JUDGMENT ' This judgment shall dispose of Appeals Nos. 12, 13, 14, 15, 16, 17, 18, 19 20, 21, 22, and 23 of 1998 as the parties and the question involved are identical. Appellants exported ;goods subject-matter of these appeals. As mandated in section 12(1) of the Foreign Exchange Regulation Act, 1947 they filed a declaration in Form-E to the effect that they shall repatriate the sale proceeds of the exported goods in question within a period of four months. They failed to honour the undertaking given whereafter they were proceeded against under the Act and the Adjudicating Officer of the State Bank of Pakistan imposed penalty in each case and break up of which is as given below:--
10. 21 of 1998 0077187 27-12-1997 Rs.1,60,000
11. 22 of 1998 0004507 27-12-1997 Rs.45,000
12. 23 of 1998 0004232 27-12-1997 Rs.1,70,000
2. In support of these appeals learned counsel for the appellant submitted that bona fide efforts were made to bring back the sale proceeds; that the protection of Economic Reforms Ordinance, 1991 imposes no clog on the movement of foreign exchange and provision of this Act being latter in time would prevail and that while passing the impugned orders the Adjudicating Officer did not advert to certain documents which had an important bearing on the case. He lastly argued that onus is on the State Bank of Pakistan to show that the appellant made no bona fide efforts to repatriate the sale proceeds and that the appellant had to face the financial crises on account of which he could not repatriate the proceeds in question and, that mitigating circumstance was a fair defence against any proceedings under the Foreign Exchange Regulation Act, 1947. After the conclusion of the arguments learned counsel for the appellant referred to certain photostat copies of sale proceed realization certificates issued by the certain banks evidencing repatriation of the sale proceeds to Pakistan. These documents have been checked with the assistance of the official of State Bank of Pakistan.
3. Khawaja Saeeduz Zafar, the. Learned Deputy Attorney-General for Pakistan who was called to assist has referred to page two of the impugned order to show that the appellant made no efforts to have the sale proceeds repatriated to Pakistan, that under section 12(1) of the Foreign Exchange Regulation Act and exporter has to furnish a declaration that he shall bring back the sale proceeds within the time stipulated vide notification issued under section 20(3) dated 27-12-1972 and that the provisions of Economic Reforms Act are not in derogation to the Foreign Exchange Regulation Act 1947, therefore, the appellant cannot claim any protection under the latter Act. He relied on Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582 (693) to contend that in fiscal matters presumption of regularity is attached to official acts and this 'Court may not 'interfere as the issues involved are technical and should be left to the experts in the field in question.
4. Heard. Record perused.
5. Neither before the Adjudicating Officer nor before this Court the appellant has produced any sale proceed realization certificates issued by the concerned Bank evidencing repatriation of sale proceeds of the exported goods. In so far as the argument that the appellant had been making bona fide efforts for repatriation of sale proceeds is concerned this is a question of fact for which the appellant should have produced some evidence before the Adjudicating Officer. In absence of any material on record indicating bona fides as claimed this Court, sitting in appeal cannot raise presumption to bona fides in favour of the appellant against the record. He could produce correspondence with the importer, complaint filed against the importer in the embassy of the importing country in Pakistan or a complaint with the Pakistan Embassy in the importing country or some recovery suit filed against the importer in the country in question.
' Admittedly no such evidence was led despite opportunity given to the appellant.
6. So far as the argument of protection granted by the Economic Reforms Act, 1991 is concerned the same is not available to the appellant as it is not denied that the appellant had given a declaration of repatriating the sale proceeds in foreign exchange. The exporter is granted certain facilities in lieu of which he makes a declaration under section 12(1) of the Foreign Exchange Regulation Act, 1947. A closer scrutiny of the relevant provisions of both the acts would show that Act XII of 1992 has not directly or indirectly repealed section 12(2) of the Foreign Exchange Regulation Act, 1947. Section 3 of Protection of Economic Reforms Act, 1992 reads as under:-- ' Act to override other laws.---The provisions of this Act shall have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947(VII of 1947), the Customs Act, 1969 (IV of 1969), the Income Tax Ordinance; 1979(XXXI of 1979), or any other law for the time being in force.
The expressions ' notwithstanding has come up for consideration in a number of cases and it has been held that the expression notwithstanding anything contained in any other law judgment' does not mean that the previous law or judgment is set aside. The Legislature as a matter of fact intends that the law and judgment as they were would remain so but a person concerned may incur a liability which the new Act may create or may do in addition to what is already provided in the existing law. In Muhammad Tayyub Khan v. Punjab Labour Appellate Tribunal Lahore (1979 PLC 377) the Labour Appellate Tribunal headed by a Judge of this Court relying on precedent case law at page 380 held in no case pre-existing laws or judgments are annulled, repealed or set aside, these remain intact as these were. The Legislature in spite thereof or notwithstanding provides something else. If the latter is mandatory, it has to be followed and nothing else can be done, if, on the other hand, it is directory, it is discretionary. Therefore, the word 'notwithstanding' has to be interpreted in its context."
' In the cases in hand the context is clear i,e, the Economic Reforms Act, 1992 explains protection to certain reforms brought about through Legislature. Sections 4 and 5 provided freedom and protection to foreign currency holder so far as the liability of the exporter to repatriate the sale proceeds of an export is concerned the same remains intact as it is regulated by law which is still in force and it mandates a declaration on the part of the exporter. The exporter who has to give the undertaking cannot seek protection of a statutory provision which is meant for a different eventuality. Section 20 of the Foreign Exchange Regulation Act empowers the State Bank of Pakistan to frame rules, give protection or issue orders which have the force of law. Under the afore-referred provision the State Bank of Pakistan has issued the Exchange Control Manual paragraph 21 of which provides as under:-- "In pursuance of Notification No, S.R.O. 1016(1)/79, dated the 17th October, 1979 issued by the Government of Pakistan all persons resident in Pakistan, and all other persons resident in Pakistan, and all other persons who are in Pakistan, are permitted to retain in Pakistan any foreign currency held by them provided such foreign currency does not represent foreign exchange released from Pakistan for any purpose and foreign exchange which has been acquired as sale proceeds of goods exported from Pakistan, earnings of profits of the overseas offices branches of Pakistan firms, companies and banks etc."
7. Notwithstanding the legal objection which should have been raised by the State Bank of Pakistan for production of documents at this stage, the same were examined with the assistance of the State Bank official who was summoned. None of these documents is relatable to the export transactions Forms-E referred to in para. 1 above.
8. In the afore-referred circumstances there is no merit in these appeals which are hereby dismissed.