MR. JUSTICE MAULVI ANWARUL HAQ.-(1). According to the writ petition, in view of the incentive offered by the Federal Government by introducing a policy titled "Rural Industrial Development Incentive Scheme" on 13-9-1990, the details whereof were published in Circular No. 6(12)/90 dated 13-9-1990 as revised vide Circular No. 6(100)/90-Policy dated 2-5-1992 and provisions of Notification SRO. 568(I)/93 dated 10-7-1993 the petitioner proceeded to install a plant and factory for manufacturing and preparation of man-made Fibres including Polyester Staple Fibres and similar other products in the rural areas of Hattar, District Rawalpindi. Permission was sought for import of machinery for the complete unit under the said scheme. However, the respondents advised the petitioner to pay import fee at the rate of 2% of the C&F value under S.R.Os. 594(I)/93 and 568(I)/93. The petitioner feels aggrieved of the imposition and recovery of said fee of 2% ad valorem on the said import of machinery.
2. Learned counsel for the petitioner contends that unlike a tax, charging of a fee had to be commensurated with the services provided by the respondents when no services are being provided by the respondents in his case at all and the imposition of fee is in fact a tax without a proper legislative authority. Learned Deputy Attorney-General for Pakistan, on the other hand, informs that the Import Fee Order, 1993 has since been rescinded by the Federal Government vide SRO. 578(I)/94 dated 9-6-1994. The Learned Dy. A.-G. Frankly concedes that the respondents are not providing any services in lieu of the said fee. However, the Learned Law Officer is of the opinion that the fee is collected by the Banks at the time of opening of the L/C and the Banks are providing services and as such the fee is justified.
3. I have given some thought to the respective contentions of the Learned counsel for the parties.
Now I find that para. 3.1 of the Import Policy Order, 1993 lays down the requirements to be met with by a registered importer who intends to import any importable item. Such a registered importer is to approach the Bank for opening of L/C and, inter alia, the Bank is to ensure that the prescribed import fee is deposited in the National Bank of Pakistan. In the entire said Import Policy Order there is not a word as to why the said fee is to be paid by the registered importer. Learned counsel for the petitioner states and the Learned Dy. A.-G. Is in no position to deny that for the purposes of registration a fee is separately levied and the Bank also has to be paid charges for opening of the L/C. I, therefore, do find that the fee is being charged without any corresponding services whatsoever. In somewhat similar circumstances this Court in the case of Ayaz Textile Mills Ltd. v.
Federation of Pakistan through Secretary, Commerce and another (PLD 1993 Lahore 194) proceeded to observe at page 203 of the report as follows:- "According to the Webster's New International Dictionary, Volume I, page 928 the word 'fee' means the charge fixed by law for the service of a public officer or for the use of privilege under the control of the Government. According to Funk and Wagnalls Encyclopaedic College Dictionary, page 487 fee is a charge, compensation or payment for something especially for something not strictly computable in terms of money (b). The same charge for some privilege membership fee. Thus, fees may be of various kinds for some example fee for admission to a College, University, a club or a security or for professional and skilful services rendered by a Doctor, Lawyer and Engineer or for services of public functionaries. It may be a payment settled through private contract or fixed by or under the law. It is a charge for something may be a privilege conferred or services rendered which cannot be accurately computed in terms of money and is left to be decided either through agreement or by the law or a statutory, authorities in their discretion. When fee is fixed by law or under the authority of law it is also compulsory action like a tax because there is an element of compulsion in such levies. Generally an element of quid pro quo is present in case of a fee but absent in that of a tax." In the said case the imposition and charge of fee was justified on the ground that an import licence is required in respect of some items prohibited under the Import Policy Order, 1990 and since a privilege or a benefit stands granted to the importer when a licence is issued to him to import the otherwise prohibited item, the same can be treated as a pro qU0 for the fee charged under the said Order.
Learned counsel also draws my attention to the case of Sri Gadadhar Ramanuj Das and others v.
The Province of Orissa and another (AIR 1950 Orissa 47). The Learned D.B. Of the said Court observes as follows at page 55 of the report:- "The concept of services by Government has undergone vast change in modem times. The function of the State has ceased to be that of merely maintaining law and order and providing optional services. The care of the well-being of the public has become a normal function of the State.
All administrative control undertaken and exercised for the benefit of the public or of section thereof is 'service rendered' by the State. It is the sine qua non of such services undertaken in public interests that, where necessary, it is independent of the option of the individual concerned. It thus appears to me that the true distinction between a tax and a fee is not 'compulsion' as the Learned advocate for the appellant contends, but the presence or absence of a 'quid pro quo' as pointed out by reputed economists Adam Smith. In modem times the 'quidpro quo' has ceased to depend on the option of the individual. This basic idea that is a 'quid pro quo ' is maintained is that a fee is not to be raised for general revenue purposes but only for a specified purpose, such as the Administration of a particular Act enacted for public benefit and is to be limited to the finance required for the purpose.
4. I, therefore, do hold that no services are being rendered by the respondents in lieu of the fee that had been charged from the petitioner and as such the imposition and recovery thereof is void and is accordingly declared as such. The writ petition accordingly is allowed and the act of the respondents in imposing and charging the import fee from the petitioner is declared to be without lawful authority. In case the said import fee has been paid by the petitioner and received by the respondents the same shall be refunded. No orders as to costs.