1. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 lays a challenge to the order dated 03.12.2010 passed by the respondents in respect of the G.D No. LDRY-HC-3006 dated 20.09.2010. The order was for enhancement of value on the basis of Valuation Ruling No.272 dated 28.9.2010.
2. The facts in the case are simple and are easily resolved. The petitioner imported a consignment of miscellaneous items and filed the copy of the G.D along with the copies of invoices/ packing list and bill of lading with the respondents in terms of section 79 of the Customs Act, 1969 (Act) for the customs clearance. In short, the goods prescribed in the GDs were assessed in terms of the Valuation Ruling No. 272 referred to above. The petitioner takes cavil to the assessment of the goods imported by the petitioner on the basis of the Valuation Ruling No. 272. The primary ground urged by the learned counsel for the petitioner in seeking the non application of the Valuation Ruling No. 272 dated 28.9.2010 is that the goods were imported and reached the port on 20.09.2010 when G.D No. 3006 was filed under section 79 of the Act for the purposes of assessment in terms of section 80 while the Valuation Ruling was issued on 28.9.2010 by D.G, Customs Valuation, Karachi under the powers conferred by section 25-A of the Act. In a nub, the learned counsel for the petitioner submits that the Valuation Ruling cannot be applied retrospectively in order to assess the goods of the petitioner whose G.D had been filed earlier in time. The entire reliance of the learned counsel for the petitioner in support of the proposition involved in this petition is on a judgment of the Sindh High Court reported as Sadia Jabbar v. Federation of Pakistan and others (PTCL 2014 CL. 537).
3. This petition is not concerned with the broader issues on which the learned Sindh High Court dwelt upon during the course of its decision. Those issues touched upon the legislative background and the true meaning underpinning section 25 and its relation with section 25-A. In particular, the true construction of the provisions of section 25-A in the context of the ‘scheme’ and ‘sequential order’ contained in section 25. I shall remain within the narrow confines of the question whether a valuation ruling rendered under section 25-A can be applied retrospectively to goods already imported into Pakistan? The Sindh High Court held, upon consideration of the provisions of section 25 and 25-A, that it did not have retrospective application and thus could only be made applicable to goods yet to be imported into Pakistan. While so holding, the learned Bench of the Sindh High Court was swayed by the words used, in pari materia, in section 18 and thus to draw the conclusion that a valuation ruling could only be applied prospectively. I beg to differ.
4. In Sadia Jabbar case, the Sindh High Court contextualized its raison d‘eter in the following passages:
“…The first point to note in this regard is that the Valuation Agreement and section 25 both relate to “imported goods”. Although this expression is not defined in either the agreement or the section, it is clear that it means and refers to goods actually imported. This is indeed, obvious and understandable. The objective both under the Valuation Agreement and section 25 is to find the “customs value of imported goods”, which expression is defined in both the agreement and the section in near identical terms. The Valuation Agreement defines this expression as meaning “the value of goods for the purposes of levying and valorem duties of customs on imported goods”, and section 25(13)(a) defines it as ―the value of goods for the purposes of levying duties of customs and other taxes on imported goods.”
15. It will be seen from the foregoing that section 25-A allowed for a major departure from the Valuation Agreement/section 25. (The close manner in which section 25 follows and replicates the Valuation Agreement must always be kept in mind). By allowing a predetermination of the customs value of goods imported into Pakistan (subsection (1)), and applying this value to the relevant imported goods (subsection(2)), the section in effect did away with the primary method mandated by the Valuation Agreement for determining the customs value, i.e., the transaction value of such goods. However, the section sought to minimize the effect of this divergence by requiring that the customs value under subsection (1) be determined “after following the scheme and sequential order as laid down under section 25″. Thus, although section 25-A knocked out the primary method of determining the customs value, it did not sweep away section 25/the Valuation Agreement in its entirety. It carefully sought to keep the determination of customs value under it aligned with the Valuation Agreement by requiring that the remaining methods of the agreement be followed and applied in the same manner as laid down therein….”
“21. Two further points must be made. Firstly, it is clear that the section 25-A cannot have retrospective effect, i.e., a valuation ruling cannot be issued in relation to goods actually imported, nor can it be applied to imported goods unless it was issued before such importation. As noted above, what section 25-A enables is a predetermination of the customs value. Such a determination can only apply in relation to goods not actually imported at the time that the determination is issued. If there is no valuation ruling when the goods are actually imported, it is only section 25 which is applicable.”
5. The primary reason which weighed with the Sindh High Court was the similarity in language of section 18 and section 25-A.
6. Although the words used in both the provisions are ‘goods imported into Pakistan’, there is no reasonable basis to hold that they carry the same connotation in the two provisions that they are used. Although the learned Bench in Sadia Jabbar case has invoked to its aid the principle that ‘words or expression used in the same statute in different sections should be given the same meaning unless the context otherwise requires’, that rule is not without exceptions and does admit to deviations in appropriate cases. In the first instance there is no plausible reason to restrict the meaning of the words ‘goods imported into Pakistan’, by judicial construction, to merely goods which are yet to be imported. The Sindh High Court, too, had to add the words ‘to be’ to the expression in order to lend actuality to its analysis. This, in my opinion, is legislating by judicial overreaching and not interpreting a provision of law. As Justice John Marshall Harlan warned, an invitation to judicial lawmaking results inevitably in “a lessening, on the one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the bloodstream of our system of government.” (John M. Marshall, The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan 291 (1969).
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