KARACHI: A two-member bench of the Sindh High Court (SHC) directed office to place all constitutional petitions before the Hon’ble Chief Justice for constitution of a Larger Bench inter alia to consider that whether SRO 833 issued in terms of section 19 of the Customs Act, 1969, can also be treated as an SRO issued by the Ministry of Commerce in terms of section 3 of the Import and Export Control Act, 1950, permitting import of vintage cars which are otherwise not importable as being old and used in terms of the Import Policy Order.
A detailed judgment was released dated April 02, 2021. Petitions were filed by Imad Samad, Syed Ahsan Hussain Rizvi, Waqar ul Hasan Alvi and others who imported the old and used cars.
Court observed that it has been contended by the petitioners’ counsel that the vintage cars imported by the Petitioners are withheld on the pretext that the same are not importable; that this issue is now settled by this Court; that respondents are bound by the dicta laid down by this Court in the referred judgment, whereas, they do not have any lawful authority not to implement the said judgment on the pretext that it has been impugned before the Hon’ble Supreme Court; that even otherwise the objections now raised by the departments Counsel and by the Ministry of Commerce have already been attended to in the said judgment; hence, they be directed to immediately release the vintage cars imported by the Petitioners as there is no issue regarding the exemption and payment of duties and taxes pursuant to SRO in question.
On the other hand, learned Counsel for the department besides arguing that the said judgment has been impugned before the Hon’ble Supreme Court; submits that it is per-incuriam as it has failed to consider the provisions of the Import & Export Control Act, 1950; that used cars are otherwise banned and can only be imported in terms of the provisions of the Import Policy Order, which does not permit import of cars older than three years; that the said facility is further restricted and is only available under the Transfer of Residence or Personal baggage scheme; hence, the petitioners are not entitled for release of the vintage cars until some specific permission is granted by the Ministry of Commerce; that upon representation of the petitioners and others, a fresh summary moved before the ECC also stands regretted, therefore, the petitions are liable to be dismissed.
Learned DAG was directed to seek instruction as to the issue presently pending before the Ministry of Commerce on 15.12.2020 and Mr. Muhammad Tariq Deputy Director had assisted us on the last date of hearing as well as today and submits that as per Ministry of Commerce though SRO 833 FBR cannot permit import of old and used cars which is banned and is only permissible under Appendix E of the Import Policy Order, under Personal Baggage, Transfer of Residence and Gift Scheme, and that too for Vehicles which are not more than five years old; that all imports are governed by s.3 of the Import and Export Control Act, and it is the mandate of Ministry of Commerce to regulate all imports including vintage or old and used cars, whereas, twice summary has been moved to the Federal Government and till date no approval has been granted; hence, the petitioners are not entitled for release of these cars until and unless special exemption or permission is granted, which presently is not available with the petitioners.
In view of hereinabove facts and circumstances of the case with utmost respect and humility at our command we beg to disagree with the dicta laid down by an earlier Division Bench in the case of Moin Jamal Abbasi (supra); hence, in view of Multiline Associates, we direct the office to place all these matters before the Hon’ble Chief Justice for constitution of a Larger Bench inter alia to consider that whether SRO 833 issued in terms of section 19 of the Customs Act, 1969, can also be treated as an SRO issued by the Ministry of Commerce in terms of section 3 of the Import and Export Control Act, 1950, permitting import of vintage cars which are otherwise not importable as being old and used in terms of the Import Policy Order”.
Court further observed that “since the vehicles are detained at port, therefore, office to act on urgent basis, whereas, if so requested the respective Collectorates shall immediately allow shifting of the vehicles of the petitioners to CPF Warehouse at the cost of the Petitioners to avoid delay, detention and storage charges accruing on a recurring basis at port”.
