MESSRS WORLD TRADE CORPORATION VS C.B.R.
1999 P T D 2341
[Lahore High Court]
Before Ihsanul Haq Chaudhry, J
Messrs WORLD TRADE CORPORATION
Versus
C.B.R. and others
Civil Revision No.828-D of 1998, decided on 19/03/1999.
(a) Constitution of Pakistan (1973)--
----Art.199---Constitutional petition ---Mala fides---Petitioner had filed a number of Constitutional petitions which were disposed of by the High Court with the direction to the Authorities concerned to pass the orders in accordance with law---Conduct of petitioner raising the same question in two different forums simultaneously, was a mala fide move.
(b) Sales Tax Act (VII of 1990)---
----Ss.45, 46, 47 &-51---Appeal---Imposition of sales tax ---Justification-- Jurisdiction of Civil Courts was barred under S.51, Sales Tax Act, 1990-- Provisions of statute barring jurisdiction of other Courts was not to be brushed aside lightly---Usurping the jurisdiction of the forums as provided under the statute itself by Civil Courts deprecated.
The Sales Tax Act, 1990 provides a detailed process for the imposition of the sales tax. The Legislature, after making provisions with regard to assessment, enacted sections 45 to 47 of the Act, 1990 which provide comprehensive machinery for the redress of the grievance of any party in respect of any order passed under the Act. It was thereafter that section 51(1) of the Act, 1990 barring the jurisdiction of Civil Court was enacted. There being a special forum under the relevant law, resort to the Civil Court is not justified, moreso when the jurisdiction was barred under the provisions contained in section 51(1) of the Act. It is matter of common knowledge that due to bypassing of the proper forum provided under the particular statute, on the one hand, the provisions of the statute are defeated and undue distrust is shown in the forum provided by the law and on the other hand, the Courts are flooded with such matters. It is also one of the main reasons for pollution of the judicial system in the country, therefore, time has come when Civil Courts should not usurp the jurisdiction of the forums as provided under the statute itself. It is in the interest of justice that provision barring jurisdiction of other Courts should not be brushed aside lightly.
Province of Punjab through Collector, Faisalabad and 8 others v. Muhammad Yaqoob 1992 CLC 2065; Messrs S. Abdullah & Co. v. Collector of Customs (Appraisement), Karachi and 2 others PLD 1992 Kar. 258; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC (Pak.) 201 distinguished.
Ch. M. Bashir for Petitioner.
A. Karim Malik for the Customs Department
ORDER
The relevant facts for the decision of this civil revision are that the petitioner, who is importer of dried coconut, filed a suit for declaration to the effect that memo., dated 28-5-1997 issued by C.B.R., respondent No.l (Sales Tax ,Wing) whereby dried coconut fit for human consumption was to be treated as "processed food" falling under PCT Head 08-01 and was to be assessed under Item B (ii) of the Sixth Schedule to section 13 of the Sales Tax Act, 1990, was illegal. It was pleaded that the consignment of the petitioner reached Dry Port, Faisalabad and it was made to pay sales tax on the same. The petitioner moved for its refund but its application was rejected vide Memo. No.10001, dated 26th of September, 1997 with reference to the memo of the respondent No.l. The suit was resisted by respondents. The trial Court accordingly framed the following issues:---
(1) Whether the plaintiff has no cause of action to file the suit? OPD.
(2) Whether the plaint is liable to be rejected under section 7, rule 11 of C.P.C.? OPD.
(3) Whether this Court has jurisdiction to adjudicate the matter? OPP
(4) Whether the plaintiff is entitled to get the decree as prayed for? OPP.
(5) Relief
2. Sheikh Abdul Hafeez appeared on behalf of plaintiff as P.W.1 and produced copy of the order, dated 26th of September, 1997 as Exh. P l, claim for refund Exh.P2 and copy of notice, dated 2nd of August, 1997 as Exh.P3. He also tendered letter of C.B.R. Mark-A. Ch. Muhammad Javed Assistant Collector Custom and Taxation appeared as D.W.1. He produced letter, dated 17th of February, 1998, Exh.D-1, letter of Collector, dated 10th of May, 1997 Exh.D-2 and copy of the Writ Petition No. 19865 of .1997 Exh.D-3. The learned trial Court after hearing the arguments dismissed the suit vide judgment, dated 27th of February, 1998. The Issue No.3 as to the jurisdiction was decided against the petitioner, who proceeded to file, an appeal which came up on the file of Mr. Muhammad Hanif Khan, Additional District Judge, Faisalabad, who upheld the findings of the trial Court on Issues Nos.3 and 4 and dismissed the appeal vide judgment, dated 17th of April, 1998, now this Civil Revision.
3. The learned counsel for the petitioner argued that the Civil Court is Court of general jurisdiction and powers vested with it are more than those of the High Court in writ jurisdiction. It is added that since the order of the C.B.R. was against law, therefore, the suit was competent. The learned counsel in this behalf has referred to Province of Punjab, through Collector, Faisalabad and 8 others v. Muhammad Yaqoob 1992 CLC 2065, Messrs S. Abdullah & Co. v. Collector of Customs (Appraisement), Karachi and 2 others PLD 1992 Kar. 258, Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356, Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC (Pak.) 201, Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Messrs K. G. Traders and another v. Deputy Collector of Customs and 4 others PLD 1997 Kar. 541 and Karim Bux v. P.O. Sindh and others 1998 CLC 27. It is added that the dried coconut imported by the petitioner was neither fit for human consumption nor a processed article, therefore, was to be assessed under P.T.C. Head 08-01-10 and not under P.T.C. Head 12.03, therefore, the sales tax could not be imposed. It is argued that it was neither bottled nor canned nor packed, therefore, it was not a "processed food" article. It is added that the admission of D.W.1 in this behalf was ignored by the two Courts.
4. On the other hand, Mr. A. Karim Malik, Advocate for the respondents argued that the petitioner could have challenged the assessment by respondent No.2 in an appeal before the Collector Customs (Appeals) and thereafter he could maintain an appeal before the Custom, Excise and Sales Tax Appellate Tribunal and ultimately it had a right of appeal in the High Court. The same was to be heard at least by a Bench consisting of two Judges. It is argued that there being specific remedies provided under the relevant law, therefore, resort to the Court of general jurisdiction was illegal. It is added that the petitioner has raised the same question in number of writ petitions including Writ Petition No. 1302 of 1997, which were disposed of with the direction to the Collector Dry Port Faisalabad to pass the formal orders, so the petitioner could avail the remedy before the proper forum under the Customs Act. It is argued that the emphasis has been laid on the letter of the C. N. R. which was of no consequences.
5. I have given my anxious consideration to the arguments and gone through the record. The admitted position is that the petitioner filed a number of Constitutional petitions, which were disposed of by this Court with the direction to Collector Customs Dry Port, Faisalabad to pass the orders in accordance with law. The conduct of the petitioner raising the same question in two different forums simultaneously could not be appreciated. It was a I mala fide move.
6. Now coming to the question of jurisdiction. The Sales Tax Act, 1990 provides a detailed process for the imposition of the sales tax. The Legislature, after making provisions with regard to assessment, enacted sections 45 to 47 of the Act, 1990, which provide comprehensive machinery for the redress of the grievance of any party in respect of any order passed under the Act. It was thereafter that section 51(1) of the Act, 1990 barring the jurisdiction of Civil Court was enacted. There being a special forum under the relevant law, resort to the Civil Court is not justified, moreso E when the jurisdiction was barred under the provisions contained in section 51(1) of the Act. It is matter of common knowledge that due to bypassing of the proper forum provided under the particular statute, on the one hand, the provisions of the statute are defeated and undue distrust is shown in the forum provided by the law and on the other hand, the Courts are flooded with such matters. It is also one of the main reasons for pollution of the judicial system in the country, therefore, time has come when Civil Courts should not usurp the jurisdiction of the forum as provided under the statute itself. It is in the interest of justice that provision barring jurisdiction of other Courts should not be brushed aside lightly. In this behalf reference can be made to the judgment of Hon'ble Supreme Court of Pakistan in the Case of The Tariq Transport Company, Lahore v. The Sargodha, Bhera Bus Service, Sargodha etc. PLD 1958 SC (Pak.) 437. The relevant portion reads as under:---
"In their judgment, however, the contention that the respondent should appeal before asking for a writ from the High Court has received no consideration, and I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory Tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent. And in a case of the present kind where the right which the petitioner for a writ claims to vest in him in entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court. He cannot be permitted to say that while he will have one or all the benefits of the stature, he will comply with none of its remedial processes."
The judgment of the Hon'ble Supreme Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 is also relevant, wherein the cases of Mehboob Ali Malik v. Province of West. Pakistan PLD 1963 Lah. 575 and Anjuman-e-Ahmadiya v. D.C. Sargodha PLD 1966 SC 639) were examined and the judgment following para of the judgment in the case of Anjuman-e-Ahmadiya (supra) was quoted with approval:---
"When the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub-Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances. have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law. as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article."
7. The findings of the two Courts below are fully justified and are strictly in accordance with law. Moreover, all these questions could be validly raised in the forum provided under the Customs Act. The judgments referred to by the learned counsel for the petitioner are not relevant in view of provisions of Sales Tax and facts of the case.
8. The upshot of this discussion is that there is no merit in this revision petition and the same is dismissed with costs.
M.B.A./W-44/L
Revision dismissed.