1. SAIYED SAEED ASHHAD, C.J.-In this Constitutional Petition, the petitioners have sought the following reliefs:--
(a) Declare that the Public Notices No, 20 of 1993, dated 29-4-1993 and 64 of 1993, dated 28-10-1993 are illegal and has no legal consequences as have been issued without jurisdiction.
2. Declare that the Public Notice No,20 of 1993, dated '29-4-1993 cannot have retrospective effect.
3. Declare that the all models of the imported cloth cutting machines of the petitioner is classified under Heading No,8451.5000.
4. Declare that the respondents are not entitled to detain the consignment of the petitioner and claim the customs duty and the same under classification No,8508.
(f) Declare that the act of the respondents Nos.2 and 3 of detaining the goods for a considerably long period on the pretext of dispute of classification which is in contravention of the Customs General Order and the relevant provisions of law and is illegal and without jurisdiction.
(g) .
5. (h)
(i) .
6. (j)
7. (k)
(l) .
(m) Declare that no demurrage charges are payable by the petitioner to the respondent No,5 and direct the respondents jointly and severally not to claim the same from the petitioners.
(n) Prohibit the respondents from auctioning the goods of the petitioners.
8. (h). Declare the action of the respondent No,2 in changing the existing practice while assessing the goods from the classification different from that it has been any practice without obtaining the orders from the Central Board of Revenue is unlawful, illegal and without jurisdiction. Direct the respondents Nos.2 and 3 to adhere the existing practice and release the goods of the petitioner.
(j) Direct the respondent to allow the clearance of the detained goods and issue delay detention certification for the same as the delay is on the part of the respondents who had illegally withheld the consignments for considerably long period without any fault on the part of the petitioner.
(k) Direct the respondent No,5 to accept the delay detention certificate which will be issued by the respondents. Nos.1 to 3.
(1) Any other relief/reliefs which this Hon'ble Court may deem fit and proper.
(in) Grant cost of the petition.
9. The brief facts of the case as available from the memo. Of petition, parawise comments filed by the Assistant Collector of Customs, respondent No,4 and the counter affidavit on behalf of respondent No,5, are that the petitioners placed an order for import of the following cloth cutting machines (hereinafter referred to as the imported machines):--
(1) Model RS-I00 (OCTA) 10 Pcs.
(2) Model KS-AU-V/8 7 Pcs.
(3) Model KS-AU-V/10 3 Pcs.
(4) Model T-I 3 1/2 40 Pcs.
10. Letter of Credit was established by the petitioners in favour of supplier on 8-10-1992. The imported machines arrived at Karachi vide 1GM No,2567 of 1992, dated 27-12-1992 and on 3-1-1993 the petitioners submitted bill of entry of consumption. According to the petitioners, the said machines were exempted from sales tax vide Notification S.R.O. No, 500(1)/88, dated 26-6-1988 and from Customs duty and Iqra surcharge. Vide Notification S.R.O. No, 791(1)/91, dated 15-8-1991. However, the Customs Officer who examined the goods opined that two of the imported machines i,e, Model No, RS-100 (OCTA) and Model T-I 3 1/2 (hereinafter referred to as two items) were to be classified under PCT Classification No,8508 instead of 8451.5000 as claimed by the petitioners. The petitioners further submitted that the above opinion of the Customs. Officer was contrary to the long standing practice of the Customs Department whereby the imported machines were continuously assessed under Heading No,8451.5000 and it was requested that as per past practice and the aforesaid two Notifications, the same may be released free of Customs duty, taxes and sales tax. The Customs Department did not accept the version of the petitioners. Thereafter, the petitioners approached the Assistant Collector of Customs, Deputy Collector of Customs and the Collector of Customs with the request that the said machines be assessed under PCT heading No,8451.5000 and with a further request that their case be processed according to the past practice but the Collector of Customs refused to do so with the following observations:-- "I do not agree with the explanation tendered. This is an obvious omission and its scope and Government revenue cannot be extended sacrificial at the altar of past practice how irregular it may be. The importer is not contesting the classification but claims relief because of our past mistakes. We have already committed enough blunder hopefully due to ignorance, further condonation with complete knowledge would not only be illegal but immoral request cannot be acceded to.
11. Please issue a public notice that benefit of such past practice will not be extended once the mistakes are detected, in supersession of all previous instructions/rulings."
12. In pursuance of the above, a public notice, dated 29-4-1993 was issued classifying portable industrial cloth cutting machines under Heading No,8508 of the PCT classification. In pursuance of the above notice, the respondents classified the imported machines under Heading No,8508 and not under Heading- No,8451.5000. The petitioners approached the learned Wafaqi Mohtasib against the illegal and immoral act on the part of Collector of Customs which according to them was mala fide with ulterior motive and void ab initio thus falling within the scope of mal- administration. The learned Wafaqi Mohtasib after hearing the representatives of the petitioners and the respondents passed order, dated 29-12-1993 ordering the imported machines to be assessed under PCT Heading No,8451.5000 and not under Heading No,8508 as claimed by the respondents. The respondents feeling aggrieved and dissatisfied with the order of the learned Wafaqi Mohtasib- filed a Review Petition and the learned Wafaqi Mohtasib by his order, dated 20- 4-1994 reviewed his earlier order, dated 29-12-1993 and concluded that the Customs Department had correctly classified the imported machines under PCT Heading No,9508.8090. The petitioners submitted that the order of learned. Wafaqi Mohtasib, dated 20-4-1994 on the Review Application, was absolutely illegal: without jurisdiction and void ab initio as he had no power to review his earlier orders as the same is to be treated as nonexistent and his order, dated 29-12-1993 would exist whereby the Customs Department was bound to assess the imported machines under PCT Heading No,8451.5000. As the respondents did not provide any relief to the petitioners, they had no alternative but to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
13. Parawise comments were filed on behalf of Customs Department wherein it was submitted that the, imported machines were correctly assessed under Heading No, 8508 in view of the public notice, dated 29-4-1993 issued by respondent No,4, Collector of. Customs (Appraisement). It was further submitted that provisional assessment was made under Heading No,8451.50Q0 on the undertaking given by the petitioners that they would pay the taxes on the imported machines in accordance with the requirements of the public notice issued in pursuance of the order of respondent No,3, therefore, the petitioners were estopped from claiming that the imported machines were not liable to be assessed under Heading No,8508. The contention that an identical consignment was assessed under Heading No,8451.5000 in view of the past practice did not carry any weight as the past practice could not be adhered to in the case of the petitioners on the ground that a public notice has been issued by respondent No,3 wherein the said machines were ordered to be assessed under Heading No,8508. It was further submitted that the learned Wafaqi Mohtasib by his order, dated 20-4-1994 decided the matter in favour of the Customs Department by holding that their action in classifying the .Imported machines under Heading No,8508 was correct. It was prayed that the Constitutional Petition did not merit any consideration and was liable to be dismissed.
14. We have heard the arguments of Mr. Junaid Ghaffar, Advocate for the petitioners and Mr. Sajjad Ali Shah, learned Standing Counsel for respondents Nos.1, 2, 3 and 4.
15. From perusal of the material on record, there is no denying the fact that the imported machines used to be classified under Heading No,8451.5000 of PCT classification and were exempted from levy of Customs duty and all other taxes vide Notifications, dated 26-6-1988 and 15-8-1991. Letter of Credit for import of the imported machines was established on 8-10-1992, imported machines arrived at Karachi on 27-12-1992 and on 3-1-1993 the petitioners filed bill of entry for consumption requesting for assessing their imported machines under .Heading No,8451.5000 as per past practice of the department. However, the Collector of Customs observed that the past practice in assessing the imported machines under Heading No,8451.5000 was not correctly applied and was resulting in loss to the Government revenue. It was further observed that the importer i,e, the petitioners were not contesting the classification but claimed relief because of the past mistakes.
16. Mr. Sajjad Ali Shah was unable to satisfy us as to how such observation was warranted from the material on record. The petitioners had all along been agitating that the imported machines were liable to be classified under Heading No, 8451.5000 and not under Heading No,8508 which was the case of the respondents. In view of this, the order of the Collector was based on untrue statement and was not warranted.
17. The relevant date for determining the levy of Customs duty and other taxes as well as the rates thereof is the date of filing of bill of entry. In the present case, the bills of entry for consumption was filed on 3-1-1993 vide IGM No,58507. Admittedly, on that date, the relevant Notifications in the field were Notifications S.R.O. No, 500(1)/88, dated 26-6-1988 and S.R.O. No,791(1)/91, dated 15-8-1991 whereby the imported machines were exempted from levy of sales tax, Customs duty and other surcharge. Till the time of filing of bill of entry, neither any Notification nor any public notice withdrawing the benefits provided by Notifications, dated 26-6-1988 and 15-8-1991 had been issued. Assuming for the sake of argument that a Notification or public notice has been issued after 3-1-1993 withdrawing the benefits of exemption from levy of A Customs duty, sales tax and Iqra surcharge on the imported machines, the same would not adversely affect the case of the petitioners as by means of a Notification, rights or privileges granted to the petitioners by way of previous Notification could not be taken away with retrospective effect. Admittedly, no Notification was issued by the Government for withdrawal of the exemption available to the petitioners. Public notice. Dated 29-4-1993 was in the nature of an executive order and according to the principle of interpretation of statutes, an executive order is to be enforced with prospective effect and not with retrospective effect so as to B take away or, deny the rights, benefits or privileges available to a person by means of an earlier Notification or executive order. If any authority is required in support of the above proposition, the same is available from the judgments in the cases of (i) Taj Mahal Hotel Limited and others v. Karachi Water and Sewerage Board and others (1997 SCM R 503) and (ii)
18. Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582). It was submitted on behalf of the respondents that the petitioners at the time of provisional assessment of the imported machines under Heading No,8451.5000 had given an undertaking that they would abide by and pay taxes in accordance with the requirements of the public notice which~ was to be issued as a result of which they are precluded from challenging the assessment of the imported machines under Heading No,8508.8090. This contention is without any substance. A Photostat copy of the undertaking is on record as annexure wherein one Haji Abdul Ghafoor Haji Muhammad Siddique had given an undertaking that he would pay the taxes after issuance of public notice, if it was applicable before the filing of bill of entry. From a bare perusal of the above undertaking, it is absolutely clear that no unconditional undertaking was given by the petitioners and what was undertaken was that they would pay taxes after issuance of the public notice, if the same would apply retrospectively which admittedly is not applicable retrospectively. Mr. Sajjad Ali Shah vehemently placed reliance on the order of learned Wafaqi Mohtasib, dated 20-4-1994 whereby .On a Review -Application filed by the Customs Department he had modified his earlier order and ordered that the imported machines were correctly classified by the Customs Department under Heading No,8508.8090 as against his earlier findings vide order, dated 29-12-1993 that the imported machines were to be classified under Heading-No, 8451.5000. In this connection it is to be noted that the learned Wafaqi Mohtasib had entertained the complaint of the petitioners on the ground that the Customs Department with mala fide intention, ulterior motive and contrary to the established past practice had refused to assess the imported machines under Heading No,8451.5000 which action of the Customs Department fell within the scope of mal-administration. The learned Wafaqi Mohtasib after providing opportunities to the petitioners and the Customs Department and from perusal of material on record came to the 'conclusion that the imported machines were to be classified under Heading No,8451.5000. This finding of the learned. Wafaqi Mohtasib was in accordance with the provisions of the Establishment of the Office of Waqafi Mohtaib (Ombudsman) Order, 1983 as action of the respondents in refusing to assess the imported machines under Heading No, 8451.5000 on the basis of established past practice and the Notifications, dated 26-6-1988 and 15- 8-1991 was contrary to the good governance, was mala fide and with ulterior motive thus bringing it within the scope of mal-administration which permitted the petitioners to invoke the jurisdiction of the learned Wafaqi Mohtasib. It is an admitted position that the power of review cannot be exercised by a Court or forum unless it is expressly conferred as held by the Supreme Court in case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). Order I of 1983 has not conferred the power of review on the Wafaqi Mohtasib therefore, he was not competent to entertain a review application. Mr. Sajjad Ali Shah contended that this Court vide its judgment in the case of Nazeer Ahmed Khan v. Pakistan International Airlines Corporation 2002 PLC (C.S) 119 had pronounced that the learned Wafaqi Mohtasib could entertain a review application and set aside his earlier order. The contention of Mr. Sajjad Ali Shah is without any substance, In the case of Nazeer Ahmed Khan v. Pakistan International Airlines Corporation (supra), the principle enunciated is that if the original order of the Wafaqi Mohtasib suffers from illegality or lack of jurisdiction adversely affecting or causing prejudice to any party then such a party could file an application to the learned Wafaqi Mohtasib for recalling, rescinding, modifying or alteting such illegal and void order which the learned Wafaqi Mohtasib could entertain not by way of a review application but for exercising the power for recalling, rescinding, rectifying, modifying, altering an illegal or void order in exercise of the powers of section 21 of the General Clauses Act and the principle of locus poenitentiae and the pronouncements made by the Supreme Court in the case of Imran Ashraf and 7 others v. The State (2001 SCM R 424). The facts of this case do not render the original order of the learned Wafaqi Mohtasib, dated 29-12-1993 as illegal, without jurisdiction or suffering from any material irregularity requiring recall/ modification/rectification/alteration in exercise of the power under section 21 of the General Clauses Act and the principle of locus poenitentiae. The learned Wafaqi Mohtasib had acted illegally in entertaining the Review Application and passing an order thereon recalling his earlier order according to which the imported machines were to be classified under Heading No,8451.5000.
19. For the foregoing reasons and discussion, we find that this Constitutional Petition merits consideration as the respondents had acted with mala fide intention, ulterior motive and violated the provisions of law. Accordingly, we allow this Constitutional Petition in terms of clauses 'b', 'c', 'e', 'jand 'kof the prayer clause.