SAID NADEEM ELECTRO LIMITED VS COLLECTOR OF CUSTOMS AND CENTRAL EXCISE/ COMMISSIONER SALES TAX, PESHAWAR
1998 PTD 2410
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui and Irshad Hasan Khan, JJ
SAID NADEEM ELECTRO LIMITED through Chairman
versus
COLLECTOR OF CUSTOMS AND CENTRAL EXCISE/ COMMISSIONER SALES TAX, PESHAWAR and 3 others
Civil Petition for Leave to Appeal No.666 of 1995, decided on 19/11/1996.
(On appeal from the judgment, dated 7-6-1995 passed by Peshawar High Court, Peshawar (Abbottabad Bench) in Writ Petition No. 18 of 1991).
Sales Tax Act (IX of 1990)---
----S.6---Constitution of Pakistan (1973), Arts.199 & 185(3)---Liability to pay sales tax---High Court dismissing Constitutional petition on ground of non-availing alternate remedy but all the same expressing views on merits of the case---Legality---Petitioners claimed exemption from payment of sales tax in respect of black and white televisions of 14" and 17" size produced by their factory under notification dated 26-6-1988; and that demand of Authorities for payment of sales tax was without lawful Authority---High Court dismissed petitioner's Constitutional petition on the ground that alternate adequate remedy was available to petitioner by approaching Central Board of Revenue and further that factual controversy was involved therein---High Court also recorded its finding on merit that case of petitioners was not covered by notification dated 26-6-1988---Petitioners instead of approaching Supreme Court in terms of Art. 185(3) of the Constitution, preferred appeal before Customs, Central Excise and Sales Tax Appellate Tribunal, where petitioner's appeal was dismissed for lack of jurisdiction---Supreme Court condoned delay in filing petition for leave to appeal and granted leave to consider whether in the facts and circumstances of case, after having found that Constitutional petition was not competent without petitioner's exhausting alternate remedies, High Court ought to have refrained from expressing views on merits of case.
Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioners.
Raja Muhammad Bashir, Deputy Attorney-General and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 1.
Date of hearing: 19th November, 1996.
ORDER
IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 7-6-1995 of the Peshawar High Court.
2. The petitioner filed a Constitutional petition before the High Court for a declaration that they were exempted from payment of sales tax in respect of black and white televisions of 14" and 17" size produced by their factory situate at Khalabat, Haripur, District Abottabad, N.-.W.F.P. under Notification No.529(1)/88, dated 26-6-1988, therefore, demand of the respondents for payment of sales tax was without lawful authority.
3. The learned Division Bench of the Peshawar High Court dismissed the writ petition being incompetent, on the ground that alternate adequate remedy was available to the petitioners by approaching the C.B.R. and further that factual controversy was involved therein. The finding was also recorded on merit that the case of the petitioners was not covered by the notification referred above.
4. Pursuant to the High Court's judgment, instead of approaching this Court in terms of Article 185(3) of the Constitution, the petitioners preferred an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad; on the basis of legal advice tendered to them which they bona fide believed. The appeal was, however, dismissed by the Tribunal by order, dated 5-11-1995 with the following observations:---
"2. In our considered view the. said appeal is not warranted by law as this forum cannot sit in review over the judgment of the Honourable Peshawar High Court. So we are left with no jurisdiction to consider this appeal. Consequentially the appeal is dismissed for lack of jurisdiction. The appellant however, is free to seek legal remedy under the law against the order of the Honourable Peshawar High Court, passed in the writ petition referred to above."
5. Mr. Gul Zarin Kiani, learned counsel for the petitioners argued that in view of the observations of the learned Division Bench of the High Court that the writ petition was not competent it was not appropriate to express the views on the merits of the controversy which has resulted in grave miscarriage of justice, in that, the order passed by the learned High Court has prevented and deprived the Tribunal from passing an order on merits in the exercise of the jurisdiction vested in it by law.
6. After hearing the learned counsel for the parties at some length, we are inclined to condone the delay in filing this petition and grant leave to appeal to consider whether in the facts and circumstances of the case, after having found that the writ petition was not competent without the petitioners exhausting the alternate remedies, the High Court ought to have refrained from expressing views on the merits of the case.
A.A./S-39/S???????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.