' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The facts giving rise to this petition as gleaned from the memo. Of petition are as follows:-- ' The respondent No,1, Federal Government announced Import Policy, 1999 vide Notification No,S.R.0.895(1)/99, dated 3rd August, 1999. Under the said import policy, import of construction machinery and equipment including second hand machinery was allowed.. The petitioner purchased an old and used Dump Mazda Truck, from Sharjah and imported the same to Faisalabad via Karachi Port. The vessel carrying the Dump Truck entered Karachi Port on or about 4th March, 2000 and the petitioner submitted the documents for its release/clearance including the Bill of Entry on 8-3-2000 which was received by the Authorized Officer of respondent No,3. After submitting the documents, the petitioner pursued his case for duty free release of clearance of the Dump Truck in accordance with section 18 of the Finance Act, 1999. It is provided in section 18(1) of the Finance Act, 1999, that notwithstanding the provisions of subsection (1) of section 18 of the Customs Act, 1969, customs duties shall be levied at the rates specified in the table given in the said section 18. The rate of duty on Dump Trucks is specified in subsection (1) of section 18 of the Finance Act, 1999 at the 0%. However, a Notification S.R.0.116(0/2000, dated 7-3-2000, was issued by the respondent No,1, whereby amendments were made in Table III of section 18 of the Finance Act, 1999. Serial Nos.1, 2, 3 and 4 and the entries relating thereto in column No,2, were omitted, with the result that the customs duty as leviable under section 18(1) of the Customs Act, 1969, became applicable. The respondent No,3, therefore, refused to release the Dump Truck free of duties and taxes on the plea that the petitioner is liable to pay the customs duty and sales tax etc. The petitioner contended that he had acquired vested right to import duty/tax free old and used Dump Truck in question under the import policy, dated 3rd August, 1999. The contention was not accepted and therefore, this petition has been filed with the plea that the concession/ exemption earlier granted could not be withdrawn and the petitioner is entitled for the exemptions and concessions available before the issuance of notification dated 7-3-2000. It is contended that the rate of duty is to be determined on the duty of "Manifest" which was delivered on 4-3-2000 and that the provisions of S.R.O. 116(1)/2000, dated 7th March, 2000, are not applicable to the import made by the petitioner. It is further, contended that the concession was available under subsection (5) of section 18 of the Finance Act, 1999, to the goods imported between 1st July, 1999 and the 30th June, 2000 and the concession/exemption cannot be withdrawn as the petitioner has acted under the assurance/guarantee of the earlier S.R.O. The petitioner has prayed for a declaration that he is entitled to concession and exemption of customs duty and sales tax in respect of the old and used machinery Dump Truck in question under the provisions of S.R.O. 895(1)/99 and the petitioner cannot be deprived of the vested rights created in the said S.R.O. Further declaration has been sought that the actions and acts of the respondents detaining the said truck for the purpose of determining the customs duty and sales tax are illegal, unlawful, without jurisdiction and mala fide, having no legal effects in the eyes of law. The petitioner has further sought declaration that the provisions of S.R.0.1/2000, dated 7-3-2000 are not applicable to the import of truck in question by the petitioner.
2. The respondents have filed comments in reply to the contentions raised on the memo. Of petition. In their comments the respondents have stated that the petitioner imported Dump Truck which arrived at Karachi Port vide I.G.M. No,362/2000, dated 4-3-2000. The petitioner filed Home Consumption Bill of Entry bearing Machine No,HC/27707 on 8-3-2000 for seeking release of said Dump Truck, on which date the imported goods were subjected to customs duty and sales tax at statutory rate in terms of S.R.O.(I)/2000, dated 7-3-2000 read with section 30 and section 31-A of the Customs Act, 1969, as a result of withdrawal of exemption. It is contended on behalf of the respondents that the petitioner was entitled to avail the exemption under the exemption notification as long as, the same was in field regardless of the fact that the appellant had opened a letter of credit or concluded the contract with the foreign supplier. It is averred that the Federal Government has lawfully withdrawn the exemption. In respect of vested right alleged by the petitioner it is contended by the respondents that by virtue of the provisions contained in sections 30 and 31 of the Customs Act, 1969 an importer or exporter is liable to pay Customs Duty on the date referred to in sections 30 and 31 of the Customs Act and in case of import on the date on which a Bill of Entry is presented under section 79 for home consumption and in case of goods cleared from a warehouse under section 104 on the date on which a Bill of Entry for clearance of such goods is presented.
3. We have heard Mr. Chaudhary Abdul Rasheed, learned counsel for the petitioner and Mr. Raja Muhammad Iqbal, learned counsel for the respondents. Mr. Ch. A. Rasheed, has submitted that a vested right was acquired by the petitioner with the import of Dump Truck in pursuance of the import policy announced by the Federal Government and the exemption allowed under section 18 of the Finance Act, 1999, which was applicable to the goods imported between the 1st of July, 1999 and 30th June, 2000. He has submitted that the Dump Truck was imported on the vessel which entered the Karachi Port on 4th of March, 2000 and with the submission of I.G.M. On 4-3-2000 a vested right was created. He has further contended that with the presentation of Bill of Entry on 4- 3-2000 it was manifested and, therefore, the S.R.O. 116(1)/2000, dated 7-3-2000, withdrawing the exemption allowed under section 18 of the Finance Act, 1999 was not applicable to the import made by the petitioner. He has submitted that the S.R.O. Withdrawing exemption shall have no retrospective effect. In support of his contentions he has placed reliance on the following judgments:- "(1) Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026, (2) Messrs Tharparkar Sugar Mills Ltd. v. Federation of Pakistan 1996 M LD 1221, (3) Messrs Polyron Ltd. v.
Government of Pakistan and others PLD 1999 Kar. 238, (4) Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v.
Central Board of Revenue and others 2000 SCM R 945 and (5) Collector of Customs and others v.
Ravi Spinning Ltd. And others 1999 SCM R 412."
4. On the other hand Mr. Raja Muhammad lqbal, learned counsel for the respondents has submitted that there is no dispute pertaining to the import policy. He has stated that the respondents have no objection to the import of Dump Truck. He has submitted that the point for consideration is whether the exemption claimed is available to the petitioner on the date the Bill of Entry was manifested. Mr. Raja M. Iqbal, has submitted that the exemption was allowed under subsection (1) read with subsection (5) of section 18 of the Finance Act, 1999. However, under subsection (7) of section 18, the Federal Government was empowered to amend the table (i), (ii),
(iii) and (iv), so as to add any entry thereto or modify or omit any entry therefrom. In exercise of the powers conferred by clause (b) of subsection (7) of section 18 of the Finance Act, the Federal Government made further amendments in table (iii) of the said section whereby in Column No,1, Serial Nos.1, 2, 3 and 4 and the entries relating thereto in Column No,2 were omitted. Mr. Raja M.
Lqbal, further contended that the plea taken on behalf of petitioner that the Bill of Entry was manifested on 4-3-2000 is contrary to the averments in the memo. Of appeal. He has drawn our attention to contents of para.4 of the petitioner which reads as follows:- "That the said vessel entered the Karachi Port on or about 4th March, 2000 and the petitioner submitted the documents for its release/clearance of the said Truck including the said Bill of Entry on 8th March, 2000 which were received by the concerned Authorized Officer of the respondent No,3."
5. The petitioner has produced photocopy of the Bill of Entry as Annexure "P/3", a perusal whereof shows that machine number was allocated to the Bill of Entry on 8-3-2000. Mr. Raja M. Iqbal, has referred to the provisions contained in section 30 and section 31-A of the Customs Act, 1969. It is provided in section 30 that the rate of duty applicable to any imported goods shall be rate of duty in force, in case of goads cleared for home consumption under section 79 on the date on which a Bill of Entry is manifested under that section. The explanation to section 30 contains that for the purpose of section 30 "manifest" means that when a machine number is allocated to Bill of Entry and is registered in Customs record. It is provided in section 31-A that notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of sections 30 and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under section 18 and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. Mr. Raja M. Iqbal, vehemently argued by placing reliance on the above provisions that no vested right is created before a Bill of Entry is manifested as defined in section 30 and therefore, the plea on the point of retrospective operation of S.R.0.116(I)/2000, dated 7-3-2000 is misconceived and not tenable.
6. Mr. Ch. Abdul Rasheed, took a plea that the Notification S.R.O. 116(1)/2000, dated 7-3-2000 was published in the official Gazette on 10-3-2000, and therefore, the said S.R.O. Shall be effective from the date of publication of the S.R.O. In the official Gazette. He submitted that since admittedly the Bill of Entry was manifested on 8-3-2000 and the S.R.O., dated .7-3-2000, whereby the concession/exemption was withdrawn, was published in the official Gazette on 10-3-2000, therefore, it shall not be applicable to the import made by the petitioner. In reply to this contention Mr. Raja M. Iqbal, referred to subsection (2) of section 19 of the Customs Act, which provides that "a notification issued under subsectidn (1) shall be effective from the day specified therein, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day".
7. We have given our anxious consideration to the contentions raised by the learned Advocates for the parties and the facts as well as law placed before us.
8. Before considering the contentions raised by the learned Advocates for the parties, it would be appropriate to reproduce various provisions of law to which reference has been made by the learned Advocates for the parties they are as follows:-- "1. Section 18 of the Finance Act, 1999
(1) Notwithstanding the provisions of subsection (1) of section 18 of the Customs Act, 1969 (IV of 1969) customs duties shall be levied.---
(a) subject to subsections (2) and (3), in respect of goods specified in column (1) of the Table I, at the rates specified in columns (3) and (4) thereof,
(b) subject to subsection (4), in respect of the goods specified in column (1) of Table-II, at the rates specified in column (3) thereof,
(c) subject to subsection (5), in respect of the goods specified in column (1) of Table-III, at the rates specified in column (2) thereof, and
(d) subject to subsection (6), in respect of the goods specified in column (1) of the Table-IV, at the rates specified in column (3) thereof, Table 111 Description of goods Rate of Custom duties 1 2 II, 998 Customs Tariff and Trade Control Part II
(1) (2)
4. Construction Equipment Tower Cranes ' 0% ' Batching plants with minimum capacity of 40 cubic meters per hour. Concrete transit mixers.
' Excavators.
' Mobile Cranes.
' Concrete pumps with capacity of 40 cubic meters per hour. Loader with minimum capacity of 2 cubic meters.
5.The goods are imported between the 1st of July, 1999 and the 30th June, 2000.
6. The goods are-
7. The Federal Government may, by notification in the official Gazette,---
(a) specify conditions, limitations or restrictions, for carrying out the purposes of this section, and
(b) amend the Tables I, II, III and IV, so as to add any entry thereto or modify or omit any entry therefrom.
2. Section 30 and section 31-A of the Customs Act, 1969 "30. Date of determination of rate of import duty.--- The rate of duty applicable to any imported goods shall be the rate of duty in force,
(a) in the case of goods cleared for home consumption under section 79, on the date on which a Bill of Entry is manifested under that section, and
(b) in the case of goods cleared from a warehouse under section 104, on the date on which a Bill of Entry for clearance of such goods is manifested under that section: ' Provided that, where a Bill of Entry has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered: ' Provided further that in respect of goods for the clearance of which a Bill of Entry for clearance has been manifested under section 104, and the duty is not paid within seven days of the Bill of Entry being manifested, the rate of duty applicable shall be the rate of duty on the date on which the duty is actually paid: ' Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of rate of duty."
"31-A Effective rate of duty.--- (1) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of sections 30 and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under section 18, and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of letter of credit in respect thereof.
(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange at which any foreign exchange is to be converted into Pakistan currency shall be the rate of exchange in force.
(a) in the case of goods referred to in clause (1) of section 30, on the date (immediately preceding the date) referred to in that clause,
(b) in the case of goods referred to in clause (b) of the aforesaid section, on the date (immediately preceding the date) referred to in that clause, and
(c) in the case of goods referred to in section 31, the dates referred to in that section.
3. Section 19 of the Customs Act, 1969 "19. General power to exempt from customs duties.--- (1) The (Federal Government), subject to such conditions, limitations, or restrictions, if any as it thinks fit to impose, may, by notification in the official Gazette, exempt any goods imported into or exported from Pakistan or into or from any specified port or station or area therein from the whole or any part of the customs duties chargeable thereon.
[(2) A notification issued under subsection (1) shall be effective from the day specified therein, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day).
4. S.R.O. 116(1)/2000, dated 7-3-2000.
Finance Act, 1999 (Amendment in Table III)
Gazette of Pakistan, Extraordinary, Part II, 10th March, 2000 ' S.R.O. 116(1)/2000, dated 7-3-2000.--- In exercise of the powers conferred by clause (b) of subsection (7) of section 18 of the Finance Act, 1999 (IV of 1999), the Federal Government is pleased to direct that the following further amendments shall be made in Table III of the said section, namely:- ' In the aforesaid Table, in Column (1), Serial Nos.1, 2, 3 and 4 and the entries relating thereto in Column (2) shall be omitted."
9. The first point for consideration is, as to when the Bill of Entry in this case was manifested in accordance with the provisions contained in the Customs Act, 1969. As pointed out by Mr. Raja M.
Iqbal, learned counsel for the respondents, the petitioner himself stated in pars. 4 of the petition that the vessel carrying the Dump Truck entered the Karachi Port on or about 4th March, 2000 and the petitioner submitted documents for its release/clearance including the Bill of Entry on 8-3-2000 which were received by the Authorized Officer of the respondent No,3. However, during the course of arguments Mr. Choudhary Abdul Rasheed, learned counsel for the petitioner contended that the Bill of Entry was manifested on 4-3-2000. In support of his contention he submitted that according to the contents of Bill of Entry the I.G.M. Is dated 4-3-2000. He further contended that the Bill of Entry was presented to the concerned officers of the Customs Department on 4-3-2000 and if it was not manifested till 8th March, 2000, the petitioner could not be held responsible for the same. On the other hand Mr. Raja M. Iqbal, vehemently argued that the petitioner after clearly stating in para.4 of the petition that the Bill of Entry was presented on 8th March, 2000 is estopped from taking any plea to the contrary. He has next contended that even otherwise it is specifically provided in explanation to section 30 of the Customs Act, that for the purpose of section 30 "manifested" means when a machine number is allocated to Bill of Entry and is registered in customs record. He has submitted that the admitted position is that machine number was allocated to the Bill of Entry on 8th March, 2000 and, therefore, the Bill of Entry shall be deemed to have been manifested on 8- 3-2000. On perusal of para. 4 of the petition, the Bill of Entry and explanation to section 30 of the Customs Act, we are persuaded to agree with the submission of Mr. Raja M. Iqbal. It is, therefore, held that the Bill of Entry pertaining to the Dump Truck in consideration was manifested on 8th March, 2000.
10. The second point for consideration is as to when vested right shall be deemed to have been created in favour of the petitioner. For this purpose a question arises as to what is a vested right.
This precise question came for consideration before a Division Bench of the erstwhile West Pakistan High Court, Peshawar Bench, in the case of Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh. 47, and the question was answered as follows:-- "18. A question may arise as to what is 'vested right'. The term`vested right' has not been defined by any statute. The learned counsel for the petitioners invited our attention to the discussion by A.S. Chaudhri, the learned author of Constitutional Rights and Limitations. Among other definitions at page 587 he defined the terms thus:--- 'It is an immediate fixed right of present or future enjoyment, and rights are vested in contradistinction to being expectant contingent."
' Continuing further on the same, page it is observed:-- "It must be a title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another. "
' The expression "vested right" is defined in Black's Law Dictionary as follows:-- "Vested rights. In Constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person, and which it is right and equitable that the Government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interest as cannot be interfered with by retrospective laws, interests which it is proper for State to recognize and protect and of which individual cannot be deprived arbitrarily without injustice. American States Water Service Co. Of California v. Johnson, 31 Cal. App.2d 606, 88 p.2d, 770, 774. Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy. State ex rel. Milligan v. Ritter's Estate, Ind. App., 46 NE. 2d 736,
743. "
11. Now we will examine, whether with the manifest of Bill of Entry, the petitioner acquired a complete right for determination of rate of duty.
12. A perusal of section 30 of the Customs Act, reproduced above shows that the rate of duty applicable to any imported goods shall be the rate of duty in force on the date on which a Bill of Entry is manifested. It is, therefore, held that the petitioner acquired a vested right on 8-3-2000, when the Bill of Entry was admittedly manifested.
13. The rate of duty for the purpose of the Customs Act is prescribed in First Schedule or any other law for the time being in force by virtue of the provisions contained in section 18 of the Customs Act.
There is no dispute on the point that by virtue of non obstante clause in section 18, of the Finance Act, 1999, it has overriding effect, and therefore, the rate of duty prescribed under section 18 of the Finance Act, 1999, shall be applicable to the imports between the first of July, 1999 and 30th June, 2000, in respect of the goods specified in the Tables I to IV in subsection (1) of section 18 of the Finance Act, 1999, until and unless any conditions, limitations or restrictions, for carrying out the purposes of said section 18 are specified or any amendment is made in the Tables I to IV by the Federal Government.
14. In view of the above admitted position of fact and law, to wit, the Dump Truck in question was imported by the petitioner on 4-3-2000, it was manifested on 8-3-2000 and Notification S.R.0.116(1)/2000 omitting the Column No,1, Serials Nos.1, 2, 3 and 4 in Table III, of section 18 of the Finance Act, 1999, was issued on 7-3-2000, but it was published in the official Gazette on 10th March, 2000, the question for consideration is as to when the amendment made by the S.R.O.
Dated 7-3-2000, has taken effect.
15. The contention of Mr. Ch. Abdul Rasheed, is that the Federal Government is empowered under subsection (7) of section 18 of the Finance Act, 1999, to amend the Tables I to IV of section, 18, by Notification in the Official Gazette, meaning thereby that the notification shall be effective from the date it is published in the official Gazette and not from the date of issuance of the notification. In order to meet this contention of Mr. Ch. Abdul Rasheed, it is 'pleaded by Mr. Raja M. Iqbal, learned counsel for the respondents Nos.2 and 3, that subsection (2) was added to section 19 of the.
Customs Act, to meet such objection. He submitted that in the wake of provisions contained in subsection (2) of section 19 of the Customs Act, 1969, the notification shall be effective from the date specified therein, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day.
16. We have given our very careful consideration to the contentions raised by the learned Advocates for the parties. After examination of the provisions contained in subsection (7) of section 18 of the Finance Act, 1999 and comparing the same with the provisions contained in sections 18, 18-A, 19(2), 25, 25B, 30, 59(2) and 219(1) of the Customs Act, 1969, section 13(2) and (5) and section 50 of Sales Tax Act, 1990, section 38 of the Central Excises Act, 1944, and section 1(3) of the Sindh Building Control Ordinance, 1979, we are persuaded to agree with the submission of Mr. Ch. Abdul Rasheed.
17. Section 19 of the Customs Act, has already been reproduced above and the other sections referred to by us for the purpose of comparison read as follows:--
1. Sections 18(2) and 3(b) of the Customs Act, 1969 [(2) The Federal Government [may on the recommendation of the National Tariff Commission constituted under the National Tariff Commission Act, 1990 (VI of 1990) (the Commission), provided the National Tariff Commission follows the same procedure as prescribed in the said Act] by notification in the official Gazette levy, subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the goods specified in the First Schedule at a rate not exceeding one hundred per cent. Of the value of such goods, as determined under section 25 or section 25B and may, by a like notification, levy a regulatory duty on all or any of the goods, exported from Pakistan."
(i) at a rate not exceeding one hundred per cent. Of the value of the goods as determined under section 25 or section 25B, if such goods are specified in the Second Schedule, and
(ii) at a rate not exceeding fifty per cent. Of the amount which represents the value of the goods as determined under section 25 or section 25B, if such goods are not specified in the Second Schedule.] [(3) The regulatory duty levied under subsection (2) shall- (a)
(b) be loveable on and from the day specified in the notification issued under the subsection, - notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day.] 18-A Special customs duty on imported goods.-- The Federal Government may by notification in the official Gazette, levy a special customs duty on the importation of such of the goods specified in the First Schedule as are of the same kind as goods produced or manufactured in Pakistan at a rate not exceeding the rate of the duty of excise leviable under the Central Excises and Salt Act, 1944 (1 of 1944), on the goods produced or manufactured in Pakistan: ' Provided that the exemption. Of any goods from the whole or any part of the duty of excise for the time being in force shall not prevent the Federal Government from levying a special customs duty on the importation of goods of the same kind: ' Provided further that, for the purposes of the Sales Tax (***) Act, 1990 (VII of 1990), the special customs duty shall not constitute a part of the value of supply].
3. Section 25(14) of the Customs Act, 1969
(14) Notwithstanding anything in subsections (1), (5), (6), (7), (8) and (9), if the Board or such officer as is authorized by the Board in this behalf is satisfied that it is necessary or expedient so to do the Board or the officer may, by notification in the official Gazette, for the purposes of levying customs duties under this Act or any other law for the time being in force, fix the minimum customs value of goods specified in the First Schedule and the Second Schedule, having regard to the trend of value o such or like goods and subject to such conditions or limitation ask the Board or such officer may deem fit. The Board or sucl authorized officer may fix different customs values for differen classes or different description of the same type of goods. / notification issued under this subsection shall be effective fron the day specified therein, notwithstanding that the officia Gazette in which such notification appears is published at an: time after that day.
4. Section 25-B (1)
(2)
[(3) A notification issued under subsection (1) shall be effective fron the day specified therein, notwithstanding that the official Gazette in which such notification appears is published at any time after that day.]
5. Section 30 (IIIrd) proviso of the Customs Act, 1969 ' Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of rate of duty."
6. 59(2). The Federal Government may, by notification in the official Gazette, exempt conveyance belonging to Government or any foreign Government from all or any of the provisions of this Chapter.
7. Section 71(1) and (2) of the Customs Act, 1969
71. Power to prohibit plying of unlicensed cargo-boats.--- (1) The Board may declare with regard to any customs-port, by notification in the official Gazette, that, after a date therein specified. No boat not duly licensed and registered shall be allowed to ply as a cargo-boat for the landing and shipping of merchandise within the limits of such port.
(2) In any port with regard to which such notification has been issued, the Collector of Customs or other officer whom the Board appoints in this behalf, may, subject to rules and on payment of such fees as the Board may, by notification in the official Gazette, prescribe, issue licences for and register cargo-boats, or cancel the same.
8. Section 202(5) of the Customs Act, 1969
(5) The Central Board of Revenue may make rules regulating the procedure for recovery of duty, tax or other levy under this section and any other matter connected with or incidental to the operation of this section.
9. 219(1). Power to make rules.--- (1) The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this Act [including for charging of fees for processing the customs documents and preparation of copies thereof].
10. Section 13(2) and (5) of the Sales Tax Act. 1990 [(2) Notwithstanding the provisions of subsection (1)---
(a) the Federal Government may, by notification in the official Gazette, exempt any taxable supplies made in Pakistan or any goods or class of goods, from the whole or any part of the tax chargeable under this Act subject to the conditions and limitations specified therein, and
(b) the Board may, by special order in each case stating the reasons exempt any supply from the payment of the whole or any part of the tax chargeable under this Act.
(5) Notwithstanding the omission of subsection (2), the Federal Government may, by notification in the official Gazette, rescind a notification issued by it or by the Board under subsection(2) prior to the first day of December, 1998.
11. Section 50 of the Sales Tax Act, 1990 Power to make rules.--- The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this Act {, including rules for charging fee for processing of returns, claims and other documents and for preparation of copies thereof.]
12. Section 38 of the Central Excises Act, 1944
38. Publication of rules and notification.--- All rules made and notifications issued under this Act shall be made and issued by publication in the official Gazette. All such rules and notifications shall thereupon have effect as if enacted in this Act.
13. Section 1(3) of the Sindh Building Control Ordinance, 1979'
(1) ..............................................
(2) ..............................................
(3) Government may, by notification, exclude any area from the operation of all or any of the provisions of this Ordinance.
18. A perusal of various sections cited above shows that the provisions conferring delegated authority on the Federal/Provincial Government empowering them to exercise delegated authority by issuance of notification containing subordinate legislation fall under the following categories:--
(i) The provisions empowering Federal/Provincial Government to resort to subordinate legislation and/or exercise the delegated jurisdiction by issuance of notification, without the condition of publication thereof in the official Gazette. The instances of such provisions are contained in section 1(2) of Sindh Building Control Ordinance, 1979 and section 202(5) of the Customs Act, 1969 (ibid).
(ii) The provision specifying that the subordinate legislation under delegated authority shall be made by publication of the rules/notifications in the official Gazette, with the clarification that the rules and notifications shall have effect as if enacted under the main statute on publication in the official Gazette. The instance of such provision is available in section 38 of the Central Excises Act, 1944 (supra).
(iii) The provisions pertaining to the delegated legislation subject to a notification in the official Gazette. The instances of such provisions are available in sections 18-A, section 30, IIIrd proviso, section 71, and section , 219 of the Customs Act, 1969,
(iv) The provisions conferring jurisdiction for exercise of delegated legislation on the condition of notification in the official Gazette, with the clarification that the notification issued shall be effective from the day specified therein, notwithstanding the fact that the issue of official Gazette in which such notification appears is published at any time after that day. The instances of such provisions are available in sections 18, 19, 25(14) and section 25-B(3) of the Customs Act, 1969.
19. Under the principles of interpretation of statutes, it is one of the recognized method to discern and ascertain the purport of legislation by comparing different provisions of the same statute or analogous provisions contained in different statutes. If on comparison of different provisions contained in a statute it is found that different expressions have been used then it shall be inferred that the provisions of law convey the different intentions. Now, coming to the various categories of the provisions pertaining to the exercise of delegated legislation, we find that in first category the only condition prescribed in law is of the issuance of notification. The Legislature has not provided that the notification should be published in the official Gazette. Thus, any power exercised or any act done in pursuance of the provision prescribing the condition of issuance of notification only shall be effective from the date of issuance of notification. It would be immaterial as to when notification is published in the Gazette or it is not published at all. If the notification is published in the Gazette it shall be deemed for the purpose of information only and not for the purpose of making the notification effective on publication of the notification in the Gazette.
20. So far the second category is concerned it specifically provides that the rules and notifications shall have effect as if enacted in the main statute on publication thereof in the official Gazette.
There is no ambiguity in respect of such provisions. However, on reading of section 38 of the Central Excises Act, 1944, we are, of the opinion that the provisions that all rules and notifications issued under the Central Excises Act, 1944, shall take effect on publication in the official Gazette, was made as a matter of clarification and abundant caution. Even in the absence of such clarification, the rules and notifications under the said Act would have taken effect on publication in the official Gazette, because it was the condition prescribed in the main enactment.
21. Now coming to the third and fourth categories, we find that in both these categories it is provided that the acts delegated under the relevant provisions could be exercised by issuance of notifications and publication thereof in the Gazette. However, in the provisions falling under the fourth category, special provisions have been made with the non obstante clause that the notification issued shall be effective from the day specified therein irrespective of the publication of the same in the official Gazette, at any time after that day. Such exceptions made are in the nature of special law and are confined to the sections referred to therein and are, further indicative of the intention of the Legislature that if no such exception is made, the general rule of interpretation would be that if a provision has been enacted empowering to do certain acts on the issuance of notification by publication in the official Gazette, it will take effect from the date of publication thereof in the official Gazette and not from the date of issuance of notification. In other words, the general principle applicable to such provisions would be that the delegated authority can be exercised on fulfilment of both the conditions i,e, issuance of notification and publication thereof in the official Gazette.
22. As a result of the above discussion it is held that the provisions contained in subsection (2) of section 19 to the effect that notification issued shall be effective from the day specified therein notwithstanding, the fact that the issue of the official Gazette, in which such notification appears is published at any time after that day and all other provisions of similar nature are confined to the effect of the notifications issued under those particular sections. In the absence of any such exceptions the notification shall take effect from the date of publication thereof in the official Gazette, if it is provided that any delegated power is exercised by notification in the official Gazette.
The notification being S.R.0.116(I)/2000, dated 7-3-2000 was published in the official Gazette on 10th March, 2000 in exercise of the powers conferred by clause (b) of subsection (7) of section 18 of the Finance Act, 1999, which provides that the Federal Government may, by notification in the official Gazette, amend the tables in subsection (1) of section 18 and the condition of taking effect of the notification on publication in official Gazette has not been relaxed as in the case of section 18(3)
(b), section 19 of the Customs Act and other provisions referred to above. Therefore, the amendment made under S.R.0.116(I)/2000, dated 7-3-2000 shall take effect from 10th March, 2000 when the S.R.O. Was published in the official Gazette.
23. After coming to the conclusion that a vested right was created in favour of petitioner on 8-3- 2000 with the manifestation of Bill of Entry and the Notification S.R.O. 116(1)/2000, issued in exercise of the powers conferred by clause (b) of subsection (7) of section 18 of the Finance Act, 1999, became effective from 10th March, 2000, the only point remaining for consideration is whether the petitioner can be denied the concession/exemption available to it under section 18 of the Finance Act, 1999.
24. Mr. Ch. Abdul Rasheed, learned counsel for the petitioner has submitted that the notification affecting the rights of petitioner cannot be given retrospective effect. In support of his contention he has placed reliance on the judgment of Honourable Supreme Court in the case of Federation of Pakistan and others v. Shaukat All Mian and others PLD 1999 SC 1026, wherein it has been held as follows:-- "It may be stated that it is a well-settled proposition of law that a notification or an executive order which may adversely affect the rights of any person cannot be given retrospective effect. In this regard reference may be made to the case of Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315, in which this Court while construing the State Bank Circular held as under:
16. Reverting to the question, whether such a direction can affect the loan agreement which were already concluded prior to such direction, it may be observed that it is a well-settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it. It may be observed that Mr. Mansoor Ahmed Khan, in support of the above proposition, has referred to the following cases:--
(i) Condicalo Hypolito Constancio Moronha v. Damji Devji and others PLD 1954 PC 22,
(ii) Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187,
(iii) The Income Tax Officer (Investigation), Circle I, Dacca and another v. Sulaiman Bhai and another PLD 1970 SC 80,
(iv) Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252, and
(v) Mahmood Shah etc. v. Additional Settlement Commissioner Revenue etc. PLD 1979 Lah.
709."
' In the above report the subject-matter was a circular issued under section 25 of the Ordinance of 1962 by the State Bank of Pakistan.
' Reference may also be made to the case of Messrs Army Welfare Sugar Mills Limited and others v.
Federation of Pakistan, and others 1992 SCM R 1652, in which it has been held by this Court that a notification adversely affecting the right of any person , cannot operate retrospectively but if the same confers any benefit, it can be made applicable retrospectively."
25. After the above authoritative pronouncement by the Honourable Supreme Court, no further discussion is required by us. Respectfully following the dictum laid down by the Honourable Supreme Court of Pakistan, it is held that the S.R.O.116(I)/2000, dated 7-3-2000 issued under section 18(7)(b) of the Finance Act, 1999, became effective from 10th March, 2000 and customs duty on Mazda Dump Truck imported by the petitioner was determined on 8-3-2000, when the Bill of Entry was manifested under section 30 of the Customs Act, 1969 and, therefore, the S.R.O. Shall not be applicable to the import under consideration which was a concluded and past and closed chapter, prior to the S.R.O. Became effective.
26. The petition is accordingly allowed and it is declared that the petitioner is entitled for concession and exemption contained in section 18 of the Finance Act, 1999 on import of Mazda Dump Truck. It is further declared that the actions and acts of the respondents detaining the said truck for the purpose of determining the customs duty and Sale Tax are illegal, unlawful, without jurisdiction and mala fide, having no legal effect. The respondents are directed to release the imported Dump Truck, to the petitioners forthwith.