Levy of infrastructure fee/cess: SHC partly allows appeals against dismissal of suits

A division bench of the Sindh High Court (SHC) has partly allowed appeals whereby the appellants had called into question the common judgement, passed by Justice Mushir Alam, a single bench judge, dismissing a number of suits. Through these suits, the appellants assailed the infrastructure fee/cess levied by the Sindh government.
The bench comprised Justice Mrs Qaisar Iqbal and Justice Khalid Ali Z. Kazi. The brief facts giving rise to present appeals were that the Sindh Assembly vide the Sindh Finance Act, 1994, provided for the imposition of an infrastructure fee through Section 9 of 1994 Act for services rendered in respect of development and maintenance of infrastructure on the goods entering or leaving the province, from or for outside the country, through air or sea.
Section 10 of 1994 Act provided for making rules for the purpose of assessment and collection of the aforestaid infrastructure fee. Partly allowing the appeals, the court, through summary of conclusions, declared as under:
-- (a) First four versions of the law ie Section 9 and 10 of Sindh Finance Act 1994, Section 5 of Sindh Finance Act 1996, the Sindh Finance (Amendment) Ordinance 2001 and Sindh Finance (second Amendment) Ordinance, 2001, to be ultra vires the Constitution, invalid, void ab initio and of no legal effect.
-- (b) The fifth version of law ie the Second Finance (Amendment) Ordinance, 2006, is valid and hence the levy imposed and collected from the effective date of the fifth version ie 28-12-2006 is valid and all imposition and collection before such date are declared to be valid;
-- (c) Any bank guarantees/securities furnished under the first four versions of the law for transaction before 28-12-2006 stand discharged and are liable to be returned back;
-- (d) all bank guarant-tees/securities furnished by the appellants in respect of transactions after 28-12-2006 are liable to be encashed;
The court suspended the operation of sub-paras 50 (c) and (d) of its 55-page judgement by a period of 60 days so as to facilitate any party aggrieved by the present judgement from exercising its right, in exhausting any further remedy available to it under the law.
The court expressed its gratefulness to the invaluable assistance rendered by Munib Akhtar, Dr Farogh Naseem and MS Sana Minhas, counsel for the petitioners and Rasheed Akhund, advocate, Abdul Fatah Malik (Additional Advocate General) for the respondents.