KARACHI: An appellate bench of High Court of Sindh decided three identical petitions challenging collection of Import License Fee from importers dismissing the same.
The petitions were filed by M.F.M.Y Industries Limited, M/s. Sapphire Textile Mills Ltd and M/s. Gatron (Industries) Limited (in C.P No. D-81 of in 1994-1995).
These Petitions involve a common question of law that whether pursuant to repeal of the Licences and Permits Fee Order, 1979 and promulgation of Import Fee Order, 1993 through SRO 594(I)/1993 dated 17.07.1993, the Petitioners were still required to pay Import Licence Fee on their imports.
The counsel for the Petitioners contended that prior to the repeal of the 1979 Order, any importer who wish to import anything into Pakistan was required to obtain an Import Licence for which requisite fee was required to be paid. According to them after repeal of the said Order and abolishment of the condition to obtain licence, no service was being provided by the Government, therefore, levy and demand of such Import Licence Fee in terms of SRO 594(I)/1993 was illegal and ultra vires to the Imports and Exports (Control) Act, 1950; hence liable to be so declared. They further contended that admittedly fee can only be levied when there is an element of quid pro quo, which is lacking in and therefore any collection of such fee during the period under question was illegal and without lawful authority.
1. One of the learned Counsel also argued that when this fee was being abolished, it was announced by the Finance Minister in his budget speech that the amount of such fee was being merged into Customs Duties, and therefore, any further collection of the same amounts to double taxation service was being provided and the question before us is not that whether such services commensurate with the amount of fee being charged by the Federal Government.
2. The bench after detailed hearing held that this cannot be measured or determined in constitutional jurisdiction; moreover, there is no cavil with the proposition that generally the fee should be relatable to the services rendered by the statutory functionaries; however, fee may be charged for conferment of a benefit or privilege as well.
3. Even otherwise per settled law the fee cannot be restricted only for rendering any material service but if any special benefit is conferred or any privilege is bestowed and for obtaining that privilege or benefit any amount is charged it will fall within the category of fee, the bench held adding that “It is not in dispute that notwithstanding the promulgation of the Import Fee Order, 1993, the Act of 1950 still regulates import and export in the country and thus regulates trade and commerce, whereas such import and export is done by way of an import and export policy which is issued every year taking into consideration the economy of the country and its requirements. At the relevant time, general import and export, unless so provided by law, was prohibited, therefore, when any licence (Annexure B in this matter) to import or export any goods is granted it is a sort of benefit or privilege which is conferred upon such a person.
4 . To the argument that Finance Minister’s speech had announced merger of fee with custom duty, we may say that Insofar as such speeches are concerned, in our view the same are without legal sanctity behind it and the Minister’s speech is of no importance till the policies as highlighted in such speeches are given legal effect or cover by way of Notification or instruction duly issued by the ministry concerned.
5 . Such speeches are usually motivated by political consideration and there is a considerable difference in between such speeches and that of a policy recognized by some statute or enactment.
6 . Here in this case not only a privilege has been extended for permitting import of an item which otherwise could not be done by all, except such permission, but even a service is still being provided, through the Export Promotion Bureau as well as the Bank (which at the relevant time were Nationalized Banks). So in essence, the requirement of quid pro quo stands fulfilled, and the levy of such fee on this touchstone cannot be declared as illegal and without sanction of law. It is further settled that fees realized may not necessarily exactly correspond to expenditure incurred on administration of the Act.
7 . In view of here in above facts and circumstances of this case, in our considered view, no case for indulgence is made out as apparently a service though in somewhat different manner as was being provided under 1979 Order; but was still being rendered under the Import Fee Order, 1993; and therefore, the Importers were required to pay the fee in question; hence, these Petitions do not merit any consideration and are hereby dismissed, the judgment said.