Messrs ALPHA CHEMICALS (PVT.) LTD. through Manager vs FEDERATION OF PAKISTAN and 4 others
This constitutional petition challenges a final assessment order issued under Section 81(2) of the Customs Act, 1969, which denied the petitioner customs duty exemption on imported platinum. The petitioner, a pharmaceutical company, claimed exemption under Table-I of S.R.O. 567(1)/2006, which grants general exemption for platinum. The respondent authorities argued that because the petitioner is a pharmaceutical entity, it is restricted to exemptions listed in Table-III of the same S.R.O., which does not include platinum. The core legal question was whether an importer belonging to a specific industry is precluded from claiming a general exemption under Table-I if that item is not listed in the industry-specific Table-III. The Court held that the assessment order was based on a misreading of the S.R.O. It determined that Table-I provides a general exemption for all importers without restriction, and the absence of platinum in Table-III does not negate the availability of the general exemption under Table-I. Consequently, the Court allowed the petition, establishing that industry-specific exemptions do not override or restrict the availability of general exemptions unless explicitly stated in the notification.
- Is an order passed under Section 81(2) of the Customs Act, 1969, subject to a statutory appeal or remedy?
- Can an importer belonging to a specific industry claim a general exemption under Table-I of S.R.O. 567(1)/2006 if the item is not listed in the industry-specific Table-III?
- Does the absence of a statutory remedy against a final assessment order under Section 81(2) of the Customs Act, 1969, justify the invocation of constitutional jurisdiction?
- Section 81(1), Customs Act 1969
- Section 81(2), Customs Act 1969
- Section 79, Customs Act 1969
- Section 80, Customs Act 1969
' UMAR ATA BANDIAL, C.J.---The petitioner imported platinum sponge/powder vide G.D. No, 27109 dated 12-12-2008, G.D. No, 52557 dated 16-5-2009 and G.D. No,411 dated 3-7-2009. On the said G.
Ds, the petitioner claimed exemption from payment of the statutory rate of customs duty at 5% advalorem on the basis of S.R.O 567(1)/2006 ("SRO") dated 5-6-2006. There are three Tables in the said notification classifying imported items and their respective rates of exemption. Table-I of the notification mentions "platinum", at item No,26-E of S.R.O. And allows total exemption from customs duty on its import. The petitioner's goods were released provisionally under section 81(1) of the Customs Act, 1969 ("Act") vide order dated 16-12-2008. A clarification from FBR was sought which by letter dated 11-9-2009 left the matter of exemption to the decision by the Collectorate on the basis that the petitioner belongs to the pharmaceutical industry. Accordingly, the final assessment order dated 15-9-2009 passed under section 81(2) of the Act denies the said exemption to the petitioner!
2. Learned counsel for the petitioner submits that no appeal/remedy under the Act is available against an order passed under section 81(2) thereof. Such an order is the final determination of assessm ent of duty with respect to goods that have been provisionally released under section 81(1) of the Act. It is distinct from a final assessment order passed under section 79 or , 80 of the Act against which an appeal/ remedy is available.
3. Learned counsel for the respondent has not been able to show any statutory remedy in respect of an order under Section 81(2) of the Act. As such in the absence of a statutory remedy, the present resort to constitutional jurisdiction of this Court is justifiable.
4. On merits, it is observed that the final assessment order dated 15-9-2009 that is based upon the opinion of the FBR dated 11-9-2009 is insistent that since the petitioner is a pharmaceutical company, therefore, it is entitled only to those exemptions from customs duty on imported goods as are listed in Table-III of S.R.O. As such the petitioner is not entitled to the general exemption on imported platinum contained in Table-I of the S.R.O.
5. The S.R.O. Has been perused carefully. Whereas specific exemptions to the pharmaceutical industry are provided in Table-III thereof, nevertheless, there is no restriction on the claim of exemption by an importer under Table-I of the S.R.O. It so happens that platinum is not an exempted item under Table-III of the S.R.O. Whilst it is exempted item under Table-I thereof.
Therefore, although there is no special exemption for the pharmaceutical industry in respect of imported platinum, there is a general exemption regarding the said item for all importers under Table-I of the said notification.
6. The language of the S.R.O. Does not place any restriction upon the persons entitled to exemption under Table-I thereof. Therefore, even though the petitioner belongs to the pharmaceutical industry, there is nothing to deprive it of the benefit of exemption under Table-I of the S.R.O.
Consequently, the impugned order dated 15-9-2009 is based on a misreading of the S.R.O. And un- necessarily deprives the petitioner of a right exemption available to all imports under Table-I of the same.
7. This petition is allowed in the foregoing terms.