' MUSHIR ALAM, J.--- The petitioner has impugned the action of respondent, Collector of Customs (Exports), their claim of refund of duty drawback was declined holding, the same to be time- barred, which decision was maintained by Member (Judicial) in appeal as well as by C.B.R. In revision.
2. Brief facts are that petitioner in due 'course of business, exported cotton Hosiery consignment under Bill of Export, dated 10-3-1993, and consequently, earned entitlement for the refund of duty drawback for an amount of Rs,1,40,028 under SRO No,1083/90, dated 16-10-1990, which provided the repayment of customs duties and refund of sales tax as specified there in paid on the importation of the raw material used in the production or manufacture of goods which are exported out of Pakistan, such claim for the refund was required to be filed within 210 days of exportation.
3. Petitioner filed their claim for refund on 6-4-1994, after 242 days i,e, 32 days beyond the period specified under the above-referred S.R.O.
4. Case of the petitioner as argued by Mr. Amir Malik, Advocate is that, C.B.R. Vide its Circular No,10(3) S&R-U/95, dated July 13, 1995, issued a directive to the concerned authorities that:-- "In order to remove the hardship of such exporters, it is hereby directed that all pending claims which have been filed within 120 days of receipt of B.C.A. (Bank Credit Advice) may be sanctioned if otherwise in order. The delay, if any, will be condoned by the concerned officials."
' In furtherance of above circular Custom General Order (C.G.O.) No,18 of 1995, dated 19-9-1995 was issued by C.B.R. To the effect that:-- "Delay in. The filing of duty drawback claims on account of late receipt of sale proceeds shall stand condoned in the case of claim filed within 180 days from the date of issue (given on the B.C.A./Annexure 'A') notwithstanding the period of delay."
6. The words "The Date of Issue" were further substituted with "The Date of Realization" vide C.G.O. 12 of 1996, dated 3-6-1996.
7. It is in the light of above C.G.O. Whereby period of limitation was extended for filing the refund claim, petitioner contends that, in his case date of realization was 6-4-1994 as confirmed by Bank Credit Advice (B.C.A.) issued by their Banker and the claim was filed two days before the date of realization, as such, there was no delay at all.
8. The petitioner had further place, on record orders in appeal passed by Collector of Customs (Appeal) in the case of Ali's International in which case also the claim of the party was rejected having been filed after almost 254 days, but in appeal, considering the C.B.R. Letter with C.G.O. 18 of 1995 as amended by C.G.O. 12 of 1996 same was allowed to be processed in accordance with law.
Likewise case of Transasia/Leather Industries and Orient Industries (Pvt.) Ltd. Were decided by the Collector of Customs Appeals in the light of above-referred C.G.O. And the parties were given the relief.
9. It was argued by the learned counsel for the petitioner that the petitioner has been discriminated and singled out as his was not even a case of condonation of delay as per relevant C.G.O. And his claim of refund was very much within time the same was declined which action is illegal and void.
10. Syed Tariq Ali, learned Standing Counsel for the respondent defended the orders passed by the respondents, and emphasised that in revision, the petitioner had stated that, delay took place due to negligence of the dealing officer, and on the face of it, the revisional authority was justified in holding that large commercial concerns and export houses are expected to perform efficiently and the negligence of the employees cannot be made the basis for condoning the stautory limitation. It is true that statutory limitation cannot be condoned by the respondent functionaries. But the fact remains that the respondents in at least three cases referred to above, have given benefit of Circular Letter C.No,10(3) S&R V/95, dated July 13, 1995, read with C.G.O. 18 of 1995, dated 9th September, 1995 as amended by C.G.O. 12 of 1996, dated 3rd June, 1996, relevant extracts, of all have been reproduced above, cumulative effect of which is that refund claim if filed within 180 days from the "date of realization" given on B.C.A. Notwithstanding the period of delay is to govern limitation for the purpose of giving benefit of S.R.O. 1083(1)/90, dated 16th October, 1990.
11. Examining the case of the petitioner in the light of above we found from the documents placed on record that export was made vide Bill of Export, dated 10-3-1993 and as per B.C.A. The date of realization of amount is 6-4-1994 and the refund claim was lodged on 4-6-1994 all above facts are admitted. The refund claim was in fact filed two days before the date of realization as such same is within time.
12. The order of the revisional authority that statutory delay cannot be condoned by subordinate legislation seems to be attractive, but when it was considered under the scheme of Customs Act, 1969, section 224 added by Finance Act, 1975, provides as follows:-- "Section 224. Extention of time limit.--- The Federal Government, the Board or the appropriate officer of Customs may, upon being approached by an aggrieved party if satisfied that the delay was beyond the control of the applicant and that by granting such extension there is a possibility of some loss or hardship to the applicant being migrated or prevented extend the time limit laid down in any section."
13. Section 224, as it can be seen on plain reading, bestows power on the Federal Government, the Board or the appropriate Officer of Customs, to A extend the time limit prescribed in any of the sections of the Customs Act, of course subject to conditions laid down in the section.
14. The relevant S.R.O. 1083(1)/90, dated 16th October, 1990, provided that refund claim to be presented within 210 days, which period was revised to read as "within 120 days of receipt of B.C.A." vide C.B.R. Circular, dated 13-7-1995, and further through C.G.O. 18 of 1995 as amended by C.G.O.12 of 1996 it was provided that refund claims filed within 180 days from the date of realization, was to govern the time limit.
15. From the provisions of section 224, enabling the C.B.R. To extend the period of limitation, the above-referred circulars and C.G.O. Were issued and same are in conformity with authority vested in C.B.R. As such the conclusion drawn by Chairman C.B.R. That statutory limitation cannot be condoned, fizzles out. Indeed by virtue of proviso to section 223, illegal orders, instructions and directions given by C.B.R. Are not binding on all officers of customs, but the case in hand is on different footing, since we have found that, above-referred circulars and C.G.O. Were issued in exericse of powers vested in C.B.R. Thereby having effect of enlarging time for filing the refund claim, same is as effective and binding as statutory, Rules is, and Officers of Customs and other persons employed in execution of the Customs Act, by virtue of section 223 are obliged to follow the same. We are suported in our view by a judgment of Honourable Supreme Court of Pakistan reported as The Province of West Pakistan through the Secretary, B Social Welfare and Local Government Department and another v. Ch. Din Muhammad and others PLD 1964 SC 21, whereby the Full Bench of the Honourable Supreme Court relying on the case of Pakistan v. Shaikh Abdul Hamid PLD 1961 SC 105.Held:-- "that Administrative instructions contained in memorandum issued by authority competent to alter or amend rules can be as effective and binding as statutory rules."
16. Above are the reasons recorded now allowing the petition by short order, dated 26-5-1999, whereby we declared that the impugned order, dated 27-5-1998 passed by the respondent No,2 is not legal and consequently, the petition was allowed with direction.To the respondents to decide the claim of the petitioner in accordance with S.R.O. 1083(1)/90, dated 16th October, 1990 and C.G.O.
No,8 of 1995, dated 19th September, 1995 as amended by C.G.O. No,8 of 1996, dated 21st April, 1996 and decide the refund claim of the petitioner taking into consideration the letter, dated 13th July, 1995, issued by C.B.R.