Messrs HIGHNOON LABORATORIES VS ASSISTANT COLLECTOR, SALES TAX AND CENTRAL EXCISE, 2003 PTD-SUPREME-COURT 2722 (2003)

(On appeal from the order of the Lahore High Court, Lahore, dated 16‑1‑2003 passed in Writ Petition No.751 of 2003).

Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑S. 48‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Arrears of sales tax‑‑‑Recovery‑‑‑Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Alternate remedy ‑‑‑ Notice for recovery of arrears of sales tax was issued to the petitioner‑‑‑Petitioner invoked the Constitutional jurisdiction of High Court against the recovery notice‑‑‑High Court granted one week's time to the petitioner to assail the notice before the appellant forum and the petition was dismissed being not maintainable‑‑‑Plea raised by the petitioner was that High Court while dismissing the petition had curtailed the statutory period of sixty days for filing of appeal, to seven days ‑‑‑Validity‑‑ Notice of recovery was identical to the Order‑in‑Original against which alternate remedy i.e. a statutory right of appeal, was available to the petitioner‑‑‑Grant of one week's time to the petitioner to file the requisite appeal was passed for the benefit of, the petitioner to provide him an interim protection against adoption of any coercive measure for the recovery of amount due under the original order‑‑‑Supreme Court observed that if the petitioner did not wish to avail the benefit then he was free to file the appeal in question within the time prescribed by law and not within the time fixed by the High Court‑‑‑Leave to appeal was refused.

Anwar Kamal, Advocate Supreme Court with Faiz‑ur‑Rehman, Advocate‑on‑Record for Petitioner.

Date of hearing: 23rd January, 2003.

ORDER

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑This petition is directed against an order, dated 16‑1‑2003 whereby a writ petition filed by the present petitioner bearing Writ Petition No. 751 of 2003 was dismissed by the Lahore High Court.

2. It was reported against the petitioner‑company that they were producing certain excisable goods which they had been clearing since 1996 without payment of the central excise duty and the sales tax etc. As a result of the requisite proceedings it was found by the Collector (Adjudication), Lahore, through his order, dated 14‑12‑2002 that the said report was correct and the petitioner‑company was consequently directed to pay various amounts of money being the central excise duty and the sales tax payable thereon. In addition to the said duty and the sales tax, the petitioner was also directed to pay certain amount of money as penalty and as additional and further taxes. A statutory right was available to the petitioner to question this Order‑in‑Original within 60 days of receipt of the said order. The petitioner had still not filed the said appeal when it received a notice, dated 31‑12‑2002 whereby the petitioner‑company was directed to deposit the above‑noticed amounts of money within seven days in default whereof the petitioner was threatened with action under section 48 of the Sales Tax Act of 1990.

3. On receipt of this notice, instead of hurrying up to file the statutory appeal, the petitioner approached the Lahore High Court with a Constitutional petition bearing Writ Petition No. 751 of 2003 questioning the said notice, dated 31‑12‑2002, and praying, inter alia, for suspension of the operation of the said recovery notice. As has been mentioned above this Constitutional petition filed by the petitioner was dismissed by the Hon'ble High Court through the impugned order, dated 16‑1‑2003 essentially on the ground that since the order from which the recovery proceedings in question had emanated was appeal-able, therefore, a petition under Article 199 of the Constitution was not competent. While disposing of this petition, the learned Single Judge had, however, granted one week's time to the petitioner to file the requisite appeal and had further directed that no coercive measures, shall be adopted against the petitioner till then.

4. It is not denied that the notice of recovery was incidental to the Order‑in‑Original, dated 14‑12‑2002 against which an alternate remedy i.e. a statutory right of appeal was available to the' petitioner. In the circumstances, no exception could be taken to the finding of the Hon'ble High Court that a petition under Article 199 of the Constitution was not competent.

5. The learned counsel for the petitioner, however, submitted that the relevant law granted the petitioner 60 days from the receipt of the order in question for the filing of the said appeal arid that through the impugned order the Hon'ble High Court had curtailed the said period of limitation which was not legal. This part of the impugned order granting one week's time to the petitioner to file the requisite appeal appears to have been passed for the benefit of the petitioner to provide him an interim protection against adoption of any coercive measure for the recovery of the amount due under the Order‑in‑Original. If the petitioner does not wish to avail of the said benefit then it is observed that the petitioner should feel free to file the appeal in question within the time prescribed by law and not within the time fixed by the High Court. It may be clarified that the period of one week which granted interim protection to the petitioner expires today and the said protection ceases to be effective as from today.

6. The result is that this petition is dismissed subject to the above observation regarding the period of limitation for filing of the statutory appeal. Leave is refused

M.H./H‑84/SC Petition dismissed.