1995 P T D 353
[Lahore High Court]
Before Malik Muhammad Qayyum, J
Messrs INDUSTRIAL ADHESIVES LTD.
Versus
THE DEPUTY COLLECTOR (NORTH), CENTRAL
EXCISE AND SALES TAX and others
Writ Petition No. 17194 of 1994, decided on 27/06/1994.
(a) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Maintainability---Constitutional petition would not normally lie when another remedy was available to petitioner but in ultimate analysis it would depend upon the facts of each case---Failure to have recourse to revisional remedy would not necessarily operate as a bar to invocation of Constitutional jurisdiction.
Mst. Hussain Bibi.v. Haji Muhammad Din and 3 others 1976 SCMR 395 and Ghulam Muhammad and others v. West Pakistan Province and others, 1968 SCMR 1202 rel.
(b) Sales Tax Act, 1990---
----S. 36---Constitution of Pakistan (1973), Art.199---Show-cause notice relating to evasion of tax---Appeal against such show-cause notice---Dismissal of appeal by Collector on short ground that petitioner's case having already stood decided by Federal Government, he had no jurisdiction to hear such appeal---High Court in earlier round of litigation had observed that appeal filed by petitioner would be deemed to be pending before Collector and would be decided afresh---Collector, therefore, could not have refused to hear petitioner's appeal merely on the ground that in earlier round of litigation, revision filed by petitioner stood decided by Federal Government---Case was remanded to Collector for decision on merit and for adjudication on question of jurisdiction of Deputy Collector to issue show-cause notice in question.
Sh. Zia Ullah for Petitioner.
A. Karim Malik for Respondents.,
Date of hearing: 27th June, 1994.
JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question an order passed by the Collector of Customs, Central Excise and Sales Tax (Appeals), North Zone, Customs House, Lahore, on 22-9-1993, whereby the appeal of the petitioner against the order of the Deputy Collector (North), Central Excise and Sales Tax, Custom House, Lahore, dated 22-8-1993 was dismissed on the short ground that as the case already stood decided by the Federal Government vide its order, dated 18-2-1993, the Collector had no jurisdiction to proceed further in the matter.
2. It is not necessary to give the facts in detail. However, suffice it to say that pursuant to a show-cause notice issued by the Deputy Collector. (North) Central Excise and Sales Tax, Customs House, Lahore on 9-7-1989, the petitioner was held guilty of having evaded the central excise duty by the Deputy Collector vide his order, dated 6-8-1992. Aggrieved the petitioner filed an appeal against the aforesaid order, which was, however, dismissed on the ground that as the petitioner had failed to deposit the sales tax and the penalty found due by the Deputy Collector, the appeal was not maintainable.
3. The petitioner then went in revision, which was dismissed by the Additional Secretary on 18-2-1993 on merits. The orders passed by the Deputy Collector, the Collector and the Federal Government were challenged by the petitioner by riling Writ Petition No. 2677 of 1993, which was accepted by this Court on 10-4-1993 and the case was remanded for decision of the appeal of the petitioner afresh. In the post-remand proceedings, as already stated the appeal has been dismissed on the ground that the matter stood foreclosed by the earlier order of the Federal Government even in the earlier round of litigation on 18-2-1993.
4. Sheikh Zia Ullah, Advocate, learned counsel for the petitioner apart from raising various other contentions has argued that as this Court while accepting W.P. No. 2677/93 had set aside both the orders of the Collector and the Additional Secretary, the Collector could not refuse to hear the appeal on merits on the ground that the revision petition had earlier been dismissed by the Federal Government when that order by itself had been set aside by this Court.
5. Mr. A. Karim Malik, Advocate for the respondents has raised preliminary objection as to maintainability of this petition on the ground that the petitioner had a remedy of invoking the revisional jurisdiction of the Federal Government against the order of the Collector dismissing the appeal once again on 25-11-1993, and therefore, this petition is not maintainable.
6. In reply, learned counsel for the petitioner has stated that the mere fact that a revision was available against the impugned order is by itself not a ground for refusing interference by this Court in exercise of its Constitutional jurisdiction especially when the impugned orders are wholly void and without jurisdiction.
7. Although it is correct that normally a Constitutional petition does not lie when another adequate remedy is available to the petitioner but in the ultimate analysis it depends upon the facts of each case. The Supreme Court of Pakistan in Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395, has ruled that "failure to have recourse to revisional remedy does not necessarily operate as a bar to invocation of writ jurisdiction". It is also to be noticed that the petitioner had earlier invoked the revisional jurisdiction of the Federal Government; that revision was dismissed, and in these circumstances, it is highly doubtful whether a relief of filing the revision before the Federal Government would be as adequate as the filing of this petition. (See Ghulam Muhammad and others v. West Pakistan Province and others 1968 SCMR 1202).
8. In the peculiar facts and circumstances of the case, I am not inclined to uphold the objection raised by learned counsel for the respondents. Suffice it to say that in the earlier writ petition, the petitioner had challenged both the orders of the Collector as also that of the Federal Government dismissing his appeal as well as revision and this Court while accepting Writ Petition No. 2677 of 1993 had observed that the appeal filed by the petitioner shall be deemed to be pending before the Collector and shall be decided afresh. In these circumstances, it was not open to the Collector to have refused to hear the petition on merits merely on the ground that in the earlier round of litigation, the revision petition stood decided by the Federal Government. Learned counsel for the respondents has, however, pointed out that the main contention raised in this case on merits was that the Deputy Collector had no jurisdiction to issue any notice but that ground, according to the learned counsel, is not available in view of the amendment made in section 36 of the Sales Tax Act, 1990 and the validation clause contained in the Finance Act. 1993. As however, I am of the view that the appeal filed by the petitioner deserves in the first instance to be decided by the Collector, this question amongst others may be raised before him who shall of course be obliged to examine the same.
In view of what has been stated above, this petition is allowed the impugned orders are declared to be without lawful authority and of no legal effect and the case is remanded/remitted to the Collector (Appeals) for decision afresh
AA./I-115/L ??????????????????????????????????????????????????????????????????????????????????????? Petition accepted.