Summary: Customs Act (IV of 1969)- -S. 19-S.R.O. 575(I)/2006 dated 5.6.2006-S.R.O. 530(I)/2005 dated 6.6.2005-Import of trucks-Exemption from customs duty and sales tax-On-Highway dump trucks imported by cement manufacturing company-On-Highway trucks were designed for long distance highway transportation and thus were not part of the plant of a cement factory-In contrast on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production the same fell within the ambit of plant-Company which had imported On-Highway trucks was not entitled to claim exemption under S.R.O. 575(I)/2006 dated 5.6.2006 and S.R.O. 530(I)/2005 dated 6.6.2005-Supreme Court directed the customs authorities to recover the customs duties and sales tax on all imported On-Highway trucks. Companies/respondents, who were cement manufacturing enterprises, imported certain trucks. Upon arrival of the trucks companies claimed exemption from duty in excess of 5% in terms of Serial No.21 of S.R.O. 575(I)/2006 dated 5.6.2006 and 0% sales tax in terms of S.R.O. 530(I)/2005 dated 6.6.2005 by declaring that the imported trucks fell within the ambit of plant as provided in S.R.O. 575(I)/2006 dated 5.6.2006. The entire basis for treating the trucks to be part of the plant of their respective cement factories was that the imported trucks were Off-Highway trucks imported for their utilization in the industrial process of their respective cement factories, hence they be regarded as part and parcel of their cement manufacturing activity. Upon physical examination of the imported trucks, the Customs Examination Staff found that the imported vehicles were not Off-Highway dump trucks but simply On-Highway trucks. Customs authorities classified the imported trucks under PCT Heading 8704.2290 which attracted 30% ad volerem customs duty and 15% Sales Tax. Trucks imported by the companies being On-Highway trucks were designed for long distance highway transportation. These trucks could mount container on its chassis for loading goods. As On-Highway truck was meant for long hauls, it also had a bunk in its cabin for its use as driver's sleeping area. In contrast to such utility, the Off-Highway dump truck was specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings were carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant. On the other hand, trucks that were imported by the companies, being On-Highway trucks and not Off-Highway dump trucks, were rightly treated by the Customs authorities as not being a part of the plant of a cement factory. Companies which had imported On-Highway trucks were not entitled to claim exemption under S.R.O. 575(I)/2006 dated 5.6.2006 and S.R.O. 530(I)/2005 dated 6.6.2005. Supreme Court directed the customs authorities to recover the customs duties and sales tax on all On-Highway trucks imported by the companies in terms of PCT Heading 8704.2290.

Summary: (a) West Pakistan Civil Service (Executive Branch) Rules, 1964- -R. 8(4)-Sindh Civil Servants (Departmental Examinations) Rules, 1978. R. 5-Civil servant-Confirmation to post-Departmental examination-As per R. 8(4) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, it was responsibility of the civil servant to undergo 6 months' training and appear in required qualifying exams within 15 months, to earn confirmation to his post-In terms of R. 5 of the Sindh Civil Servants (Departmental Examinations) Rules, 1978, it was not the duty of the controlling/ appointing authority to issue any reminder, explanation call or show cause notice etc. directing any civil servant to appear in the qualifying exams.-Rule 5(2) of the Sindh Civil Servants (Departmental Examinations) Rules, 1978 cast responsibility on the shoulder of the civil servant desiring to appear in the examination to give intimation in a prescribed manner to the examining authority directly or through appointing authority not later than 15 days before the date scheduled for such examination-Controlling/appointing authority could not be burdened with the responsibility for issuing any reminder, explanation call, show cause notice, etc directing a civil servant to appear in examination to qualify. (b) West Pakistan Civil Service (Executive Branch) Rules, 1964- -R. 8(4)- Civil servant-Confirmation to post-Departmental examination-Consequence for not qualifying the required exams per R. 8(4) of Executive Branch Rules, 1964 was that the civil servant, so appointed shall not be confirmed to the appointed post unless he qualified the prescribed examination. (c) Civil service- -Promotion-Civil servant promoted belatedly for no fault on his part-When promotion of such civil servant to next higher grade was effected then his promotion and seniority was to be counted and reckoned with his contemporary junior officers who were promoted earlier to him. (d) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975- -R. 13-Deferment of promotion-Grounds-Proforma promotion-Scope-Civil servant not promoted on his turn on the ground that either his seniority was under dispute or was not determined; or, he was on deputation, training or on leave; or disciplinary proceedings were pending against him; or he was not considered by the selection authority inadvertently-When dispute as to seniority of such civil servant was resolved in his favour; or his deputation, training or leave was over; or disciplinary proceedings culminated in his favour, or where inadvertence for not considering his promotion was remedied, only then on subsequent promotion, such civil servant would rank and be deemed to have been promoted in the same batch at par with his contemporary batchmates who were promoted earlier to him. (e) Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974- -Rr. 2 & 7-A-Civil Service Rules, 1950, Vol.1, R. 31-Antedated promotion-Scope-As a general rule promotion took effect from the date on which a civil servant assumed the charge of higher post-Only exception to grant antedated promotion by the competent authority to a superannuated or deceased civil servant, was provided under R. 7-A of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18-3-2006)-Where a civil servant who was in fact recommended for promotion to next high post by the Provincial Selection Board or the Departmental Promotion Committee as the case may be but before issuance of his notification for promotion, such civil servant either passed away or retired, in such eventuality pre-condition to assume charge as mandated under R. 31 of Civil Service Rules (1950), Vol. 1 was done away under R. 7-A (2) of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18-3-2006).

Summary: (a) Customs Act (IV of 1969)- -S. 19-S.R.O. 484(I)/92 dated 14-5-1992-Import of 'plant and machinery'-Exemption from customs duty and sales tax-"Off-Highway dump trucks"imported by cement manufacturing company-Whether such trucks fell within the definition of 'plant'-Use of Off-Highway dump trucks at the quarries made them part and parcel of the industrial process of the cement company in question and their utility formed an integral function in the manufacturing of the cement-Direct nexus existed between the use of Off-Highway dump truck at the quarry of the cement manufacturing factory with its industrial process-Such nexus brought the Off-Highway dump truck within the definition of 'plant'-Irrespective of the fact that Off-Highway dump trucks were mobile vehicles, they were utilized to further the industrial process without which the industrial process of a cement factory would get interrupted and hindered at the very initial stage-"Off-Highway dump trucks"fell within the definition of the present company's cement"plant". Under S.R.O. 484(I)/92 dated 14-5-1992, plant and machinery, not manufactured locally, which were imported for setting up a new unit or for expansion or balancing, modernization and replacement of an already existing unit in certain areas was granted exemption from the whole of the customs duty and sales tax subject to fulfilling certain conditions. Cement company, in the present case, imported three Off-Highway dump trucks and claimed exemption from customs duty and sales tax under S.R.O. 484(I)/92 dated 14.05.1992 by contending that the Off-Highway dump trucks were imported for use in the industrial process of a cement factory, therefore, the same should be regarded as part of the plant and machinery of the cement factory. Entire set of machines used in conjunction with other apparatus and electrical and mechanical equipment, required for undertaking and completing the cement industrial process, starting right from quarrying till the finished product that was produced was to be regarded as part of the plant of the cement company. In cement industry Off-Highway trucks were used at the quarries where the predominant raw-material in the cement production 'limestone' was won from the quarry by either extraction or blasting following which it was hauled on Off-Highway dump trucks to the place where the second stage in the cement manufacturing i.e. crushing of the raw-material took place. Thus there was direct nexus between the use of Off-Highway dump truck at the quarry of a cement manufacturing factory with its industrial process. Such nexus brought the"Off-Highway dump truck" within the definition of 'plant'. Off-Highway dump trucks could not be excluded from being treated as part of the plant of a cement factory, where their utility formed an integral function in the manufacturing of the cement. Irrespective of the fact that Off-Highway dump trucks were mobile vehicles, these trucks were utilized to further the industrial process without which the industrial process of a cement factory would get interrupted and hindered at the very initial stage. Yarmouth v. France 1887 LIR 19 Q.B.D. 647 ref. In the present case, the quarrying of materials was undertaken by one and the same enterprise which after completion of the remaining stages involved in the manufacturing of cement (crushing, blending, heating, cooling, clinkering and milling) ended with the portable cement being produced in bulk or bags for consumption. Cement company, in the present case seemed to be so designed that its' Off-Highway dump trucks involved in the industrial process were to be regarded as part of the 'plant' of the cement factory. Use of Off-Highway dump trucks at the quarries made them part and parcel of the industrial process of a cement factory and thus such trucks fell within the definition of the company's cement plant. (b) Customs Act (IV of 1969)- -Ss. 19 & 30-S.R.O. 484(I)/92 dated 14-5-1992-S.R.O. 978(I)/95 dated 4-12-1995-Import of 'plant and machinery'-Exemption from customs duty and sales tax-Cut off date for SRO-Letter of credit for imported consignment opened within cut-off date mentioned in SRO, whereas consignment delivered at port after the cut-off date-Date on which 'Letter of Credit' was established or steps were taken in respect of import of consignment were not relevant and it was the date of import which determined applicability of the customs duty-In such circumstances importer-company was not entitled to seek exemption granted under S.R.O. 484(I)/92 dated 14-5-1992-However, the company was entitled to exemption to a limited extent by virtue of a different S.R.O. No. 978(I)/95 dated 4-12-1995 which exempted duties and charges over and above 25% of the leviable customs duty and sales tax and no more-Customs authority was justified in recovering customs dues and sales tax on the imported consignment accordingly. Fauji Cement Company Limited v. Federation of Pakistan 2014 SCMR 994 ref. Dates of hearing: 13th and 27th April, 2016.

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