Messrs ROCKLAND, KARACHI VS GOVERNMENT OF PAKISTAN
2004 P T D 2014
[Karachi High Court]
Before Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ
Messrs ROCKLAND, KARACHI through Sole Proprietor, Sikandar Butt
Versus
GOVERNMENT OF PAKISTAN through Secretary of Ministry of Finance and Economic Affairs, Central Board of Revenue, Islamabad and 2 others
Constitution Petition No.D‑1522 of 1995, decided on /01/.
th
April, 2003. Customs Act (IV of 19(9)‑‑‑--
‑‑‑‑S. 41‑‑‑Customs General Order No.8/91, dated 12‑2‑1991‑‑‑S.R.O. 839(I)/88, dated 20‑9‑1988‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Customs duty drawback claim‑‑‑Rejection of claim as time‑barred on grounds of exporter's failure to file claim within 210 days of shipment of goods or within 15 days of receipt of Bank Credit Advice and his failure to justify delay of 55 days ‑‑‑Validity‑‑ High Court would not interfere with discretion exercised by subordinate Tribunal, unless same was shown to be arbitrary or fanciful‑‑‑No plausible and satisfactory explanation for such extraordinary delay had been made‑‑‑Discretion exercised by Tribunal neither appeared arbitrary nor fanciful‑‑‑High Court dismissed Constitutional petition in circumstances.
Messrs Kalani Textiles v. Central Board of Revenue (Constitutional Petition No.D‑25 of 1994) fol.
Ch. Rasheed Ahmed for Petitioner.
Syed Sajjad Ali Shah, Federal counsel for Respondent.
Raja Muhammad Iqbal for the Department.
ORDER
1. In this petition petitioner has made the following prayer:‑
(a)Declaring that the petitioner is entitled for Duty Draw Back/ Rebate Claim. against the export made under Invoice No. 102 of 1992 BI No.001946.
(b)Declaring that the impugned orders/judgments passed by the respondents are without lawful authority, improper null and void, having no effect in the eye of law.
(c)Cost.
(d)Any other relief or reliefs as this Honourable Court may deem think fit and proper in view of the circumstances of the case.
2. Relevant facts for disposal of this Constitutional petition are that petitioners who are exporters filed a duty draw back claim bearing No. SR‑2/12950/93 dated 3‑4‑1993 on which respondent 3, Collector of Customs (Exports), Karachi held that the claim so filed by petitioner was with a delay of 427 days from the date of shipment as against prescribed period of limitation of 210 days and rejected the same being time‑barred. Appeal filed by petitioner before respondent No.2. Additional Secretary. (Appeals) Central Board of Revenue, too, failed also a revision application filed by petitioner met the same fate. Now, above prayers have been made mainly on the ground that the sole proprietor of petitioner fell ill and could not file its claim earlier. It is averred that even otherwise no period of limitations is prescribed for claiming duty draw back/rebate as was claimed.
3. Comments have been filed by Assistant Collector of Customs (Law Branch) Customs House, Karachi, it is, inter alia, stated that exporter was required to file claim within 210 days of the shipment as is envisaged by S.R.O. 839(I)/88, dated 20th September, 1988 or the exporter could have filed claim within fifteen days from the receipt of the Bank Credit Advice (BCA) in terms of CGO 8/91, dated' 12‑2‑1991, therefore, it is incorrect that there was no limit prescribed for claiming duty draw back. It is further stated that petitioner filed his claim after the lapse of 55 days even from the issue of BCA hence he is himself responsible for the delay.
4. We have heard learned counsel for parties and with their assistance we have gone through the material available before us.
5. Mr. Chaudhry Rasheed Ahmed, learned Advocate for petitioner while reiterating the above stated facts contended that the sole proprietor of the petitioner was suffering from ailment of Shiatica and was advised bed rest, therefore, claim in question was filed with a delay of 427 days. Mr. Chaudhry argued that the delay was neither deliberate nor intentional, therefore, ought to have been condoned for which application under section 5 of the Limitation Act was filed by petitioner. He submitted that in view of above, failure to consider his case has resulted in an illegality in passing the impugned order.
6. On the other hand, Syed Sajjad Ali Shah, learned Federal counsel has vehemently opposed this petition. He has stated that petitioner, though failed to explain each and every day of delay satisfactorily was not able to establish that he was not in a position to engage any counsel to represent him or for that matter he could not instruct/appoint/nominate any other person to do the needful on his behalf, therefore, the ground advanced by petitioner was absolutely without any substance and the respondents were justified in passing the impugned orders. While referring to an unreported case of Messrs Kalani Textiles v. Central Board of Revenue (Constitutional Petition No.D‑25/94) wherein a Division Bench of this Court refused to interfere with the discretion so exercised by the subordinate Tribunals and dismissed the petition where the delay of 22 days was occasioned in filing application for rebate.
7. Mr. Raja Muhammad Iqbal, Advocate while adopting the arguments of Syed Sajjad Ali Shah, Federal counsel, opposed this petition.
8. Perusal of the judgment, dated 30‑3‑1995 passed by the Vice Chairman Central Board of Revenue Government of Pakistan on Revision Petition No.10(71) CUS‑REV/94 reveals that while rejecting the said revision application it has been observed as follows:‑‑
"(4) The delay in the filing of their rebate Claim No.SR 2/129650/93‑Electoral Roll‑II, dated 3‑4‑1993 is extraordinary and is not covered by the following:‑‑
(a)The exporter was required to file his rebate claim within 210 days of shipment of his goods. He failed to file his claim within prescribed limit.
(b)The exporters had another legal facility that he could file his rebate claim within 15 days of receipt of his Bank Credit Advice. He also failed to observe the time limit.
(5)In view of applicants failure to justify delay of 55 days' case cannot be considered fit for condonation. The revision application is rejected".
9. In case of Messrs Kalani Textiles (Supra) where there was a delay of 22 days Division Bench of this Court headed by our learned brother Mr. Mamoon Kazi, J. (as then he was) while adverting to Standing Order No.8/99/91, referred to above, refused to interfere with the discretion exercised by the subordinate Tribunals unless it was shown that the discretion so exercised was arbitrary or fanciful. In the petition there is extraordinary delay as mentioned above for which no plausible and satisfactory explanation for each day was made. In our estimation, discretion exercised by the Tribunals neither appear arbitrary nor fanciful. Accordingly, we do not find any substance in this petition which is dismissed accordingly.
S.A.K/R‑7/KPetition dismissed.