PAKISTAN TELECOMMUNICATION COMPANY LTD. vs COLLECTOR OF CUSTOMS, KARACHI Ss — 2023 PTD 241 SUPREME-COURT

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PAKISTAN TELECOMMUNICATION COMPANY LTD. VS COLLECTOR OF CUSTOMS, KARACHI Ss. 19, 19a & 33--- Equipment imported by Pakistan Telecommunication Company Ltd. (PTCL)---Over-paid customs duty, refund of---Concessionary rate of customs duty under SRO.457(I)/2004 dated 12.06.2004 ('SRO 457'), benefit of---Held, that the imported equipment fell within the purview of 'components' stated in SRO 457---'Conditions of Import', provided in SRO 457, stipulated two essential conditions precedent for availing the concessionary rate of customs duty: firstly, the imported goods should not be manufactured locally, and this fact was to be certified through the erstwhile Central Board of Revenue by the Facilitation Committee of the Board of Investment (BOI); and secondly, the importer was to produce NOC or license, as the case may be, from the concerned agencies for the purpose---Factually, the appellant (PTCL) fulfilled both the said conditions---section 19a was inserted in the Customs act, 1969 when the refund claims of the appellant were pending adjudication before the additional Collector of Customs, however as section 19a provided for a rebuttable presumption, it fell within the purview of procedural law, and thus, had retrospective application to the refund claims of the appellant---at the time when the appellant had filed the Goods Declaration and refund claims, section 33 of the Customs act, 1969 did not expressly require a claimant (importer) to show that the incidence of the paid customs duty had not been passed on to the buyer as part of the price of the imported goods, therefore, section 33(4) , being substantive law, could not be applied retrospectively---In the present case, admittedly the imported equipment had not been sold further by the appellant to any third person/buyer either directly, as they were actually imported, or indirectly, as a raw material or as a component part in the finished product; rather the same had been used and installed by the appellant in its own project of telecommunication services---Therefore, the concept of unjust enrichment referred to in section 19a, could not be applied to the present case---appeal was allowed, and the refund claims of the appellant in respect of the over-paid customs duty were allowed.

PAKISTAN TELECOMMUNICATION COMPANY LTD. vs COLLECTOR OF CUSTOMS, KARACHI Ss — 2023 PTD 241 SUPREME-COURT

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