MUHAMMAD MUJIBULLAH SIDDIQUL J.- In all the above petitions the following common questions of law have been raised:-
(1) Whether regulatory duty in essence, scopes and objective is nothing but custom duty?
(2) Whether regulatory duty can be imposed through subsequent notification without amending the original and operative exemption notification?
(3) Whether collection of regulatory duty is punitive in intent, oppressive in nature and contrary to the provision of SRO 1147(l)/89 duly amended time to time and violative of Articles 4, 18 and 23 of Constitution of Pakistan, 1973?
2. Heard M/s. Aziz A. Shaikh and Tayyaba Jabeen, Advocates for the petitioners and Mr. Raja Muhammad Iqbal, Advocate for the respondents.
3. At the very outset Mr. Raja Muhammad Iqbal, has pointed out that all the three questions stand decided by the Hon'ble Supreme Court in the case of Collector of Customs i/. Ravi Spinning Mills Ltd.. 1999 SCM R 412.
4. The learned Advocates for the petitioners have candidly conceded that the question Nos. 1 and 2 stand decided by the Hon'ble Supreme Court, in the case of Collector of Customs v. Ravi Spinning Mills Ltd. (supra), wherein it has been held that the regulatory duty is in essence a custom duty and that the regulatory duty can be imposed through subsequent notification and shall be operative in spite of exemption notifications, if through the exemption notifications the whole of the customs- duties have not been exempted and the exemption notification issued prior to the imposition of regulatory duty vide SRO 1050(l)/95 has granted exemption from the levy of custom duty specified in First Schedule to the Customs Act, 1969 or has merely stated that the exemption is granted from the levy of custom duty. The learned advocates for the petitioners have contended that although the petitions under consideration have assailed the legality and propriety imposed vide SRO 1050(l)/95 and the Hon'ble Supreme Court has upheld the validity of SRO 1050(1)95 but the application thereof is not un-restricted. They have submitted that if an assessee was granted exemption from payment of the "whole of the customs-duties" without making any reference to custom duty prescribed in the First Schedule of the Customs Act, then the regulatory duty imposed under SRO 1050(l)/95 is not attracted.
5. The learned counsel for the respondent contended that he has no cavil with the proposition canvassed by the learned Advocates for the petitioners, but it is of no help to them, because the petitioner shave assailed the applicability of SRO 1050(l)/95 with reference to the exemption granted vide SRO 1147(l)/89, dated 27th of November, 1989, which was amended from time to time and copy of the said notification has been annexed to the petition by the learned Advocates for the petitioners which reads as follows:- "Notification No. S.R.O. 1147(l)/89, dated 27th November, 1989.-- In exercise of the powers conferred by Section 19 of the Customs Act, 1969 (IV of 1969), the Federal Government is pleased to exempt so much of the materials specified in the .Annexure to this Notification as are imported for the manufacture of drugs registered under the Drugs Act, 1976 (XXXI of 1976), from the customs duty as is in excess of 10% ad va1. Specified in the first Schedule to the Customs Act, 1969 subject to the following conditions, namely:-
(1) ............................... (2) ............................... (3) ...............................
6. The learned counsel for the respondents has pointed out that the Notification SRO 1147(!)/89 produced by the petitioners themselves, as amended, speaks of the exemption from customs duty as is excess of 10% ad va1. Specified in the first Schedule to the Customs Act, 1969 and does not contain the grant of exemption from 'whole of the customs-duties'.
7. The learned Advocates for the petitioners in reply to the above contention submitted that, although the Notification No. S.R.O. 1147(l)/89, stood as reproduced above at the time of filling the petition and the amended notification grants exemption from custom duty as in excess of 10% ad va1. Specified in the First Schedule to the Customs Act. 1969 only but the original exemption was granted to the petitioners under S.R.O. 350(l)/85 published in the Gazette on 16.4.1985 and it granted exemption from the payment of "whole of the customs-duties". S.R.O. 350(l)/85 was rescinded vide Notification S.R.O. 1146(l)/89, dated 27.11.1989 and on the same day, Notification S.R.O.
1147(l)/89, dated 27th November, 1989 was issued granting exemption from the "customs-duties".
Fie has submitted that, since the S.R.O. No. 350(l)/85 was rescinded on 27th of November, 1989, vide S.R.O. 1146(l)/85 and on the same day exemption was granted vide S.R.O. 1147(l)/89, therefore, it has the effect of reviving S.R.O. 350(l)/85 and thus, notwithstanding the rescinding of S.R.O. 350(l)/85, the exemption granted vide S.R.O. 1147(l)/89 with the words customs-duties' should' be read as the "whole of the customs-duties" as occurring in S.R.O. 350(l)/85.
8. We are not persuaded to agree with the contention of learned counsel for the petitioners as it is far-fetched and is not in consonance with the established principle that one any Act, Regulation or any other law is expressly repealed in whole or part or any notification is rescinded it shall not be revived until and unless it is revived expressly by another enactment/notification.
9. We find substance in the contention of learned counsel for the respondents that the Notification No. S.R.O. 1147(l)/89 with reference to which the applicability of S.R.O. 1050(l)/95 is assailed, granted exemption from custom duty as is in excess of 10% ad va1, specified in the First Schedule to the Customs Act, 1969 and thus, the dictum laid down by the Hon'ble Supreme Court in the case of Collector of Customs v. Ravi Spinning Mills Ltd. (supra) is fully attracted. We are further of the view that a notification granting exemption is to be seen and applied as it stands at a particular point of time because the Federal Government is admittedly empowered to amend the notifications issued under the Customs Act from time to time and no body can be allowed to take plea that the S.R.O, should be read as it stood at sometime in the past or the exemption granted through a preceding notification which stands rescinded should be read in the subsequent notification which is a distinct and independent notification in itself and does not narrate that it is in continuation of the earlier 'rescinded notification. We would like to observe that, Mr. Aziz A. Shaikh, learned counsel for the petitioners, conceded that the law laid down by the Hon'ble Supreme Court in the case of Collector of Customs v. Ravi Spinning Mills Ltd. (supra) is not squarely applicable to the petitioners but he conceded that it is logically applicable to the petitioners.
10. For the foregoing reasons, it is held that in consonance with the principle laid down by the Hon'ble Supreme Court in the case of Collector of Customs v. Ravi Spinning Mills Ltd., the regulatory duty imposed vide S.R.O. 1050(l)/95 has been validly levied to the goods imported by the petitioners. All the petitions stand dismissed accordingly.