Messrs FAUJI CEMENT CO. 'LTD. through Additional Managing Director, VS APPELLATE TRIBUNAL CUSTOMS, CENTRAL EXCISE AND SALES TAX, LAHORE, 2004 PTD-KARACHI-HIGH-COURT-SINDH 621 (2001)

(a) Customs Act (IV of 1969)---

----S. 196---Appeal dismissed for non-prosecution, restoration of---Plea of appellant was that appeal was directed to be fixed along with Constitutional petition, which had been heard, whereupon judgment was reserved, thus, he thought that such judgment covered both petition and appeal; and that he came to know about dismissal of appeal, when Customs Authorities revived their demand---Explanation being plausible, High Court condoned delay and restored the appeal.

(b) Customs Act (IV of 1969)---

----S. 196---Appeal before High Court involving only question of fact, in respect of which there was concurrent finding of appropriate Tribunal-- Maintainability---High Court under S. 196 of Customs Act, 1969 declined to interfere with such finding and dismissed the appeal.

C. P. No. D-1244 of 1997 ref.

Talib H. Rizvi for Appellant.

Raja Muhammad Iqbal for Respondents.

ORDER

SABIHUDDIN AHMED, J.---1. Granted.

2 & 3. Learned counsel states that this appeal was directed to be heard alongwith the C.P. No. D-1244 of 1997 and had argued whereupon the judgment was reserved, therefore, the appellant thought that the judgment covered both the petition and the appeal and only came to know lately that the latter has been dismissed for non-prosecution when the Customs Authorities revived their demand. The explanation sounds plausible and we would therefore, condone the delay and the restore the appeal.

4. Since this is a 1998 matter we decided to hear learned counsel on merit as well. The appellant had imported the plant and machinery for establishing a Cement Factory at Attock and had obtained necessary permission and permits claiming that they, were entitled to the benefit of S. R. O. 481(I)/92, dated 14-5-1992. An objection was raised to the effect that the machinery imported by the petitioner was not entitled to the benefit of exemption, against which they approached the C.B.R. They were however, allowed to get the consignment released upon furnishing appropriate undertaking to pay customs duty if found leviable. In the meantime the matter was adjudicated upon in the hierarchy of the Tribunals under the Customs Act and eventually went in appeal before the learned Customs, Excise and Sales Tax Appellate Tribunal. The basic question involved, as appeared in the impugned judgment was, whether the kind of plant and machinery imported by the petitioner was locally manufactured and the Tribunal up held the finding of fact recorded by the lower force and dismissed the appellant's appeal. This appellate order, dated 22-9-1998 has been called in question in this appeal.

Mr. Talib H. Rizvi, learned counsel for the appellant has relied upon a judgment of a Division Bench of this Court, dated 18-5-2000. Whereby, C.P. No. D-1244 of 1997 preferred by the petitioner was allowed and they were held to be entitled to the benefit of S.R.O. 484(I)/92. Explaining the back ground learned counsel stated that the exemption notification mentioned above, had been withdrawn prior to the arrival of a certain part of the consignment and the Customs Authorities were therefore, not willing to grant the petitioner the benefit of the same. Such decision was challenged in the above Constitutional petition which was allowed by this Court.

Mr. Talib. H. Rizvi emphatically contended that all questions involved in this appeal have been authoritatively decided by the Division Bench in the aforesaid judgment and this appeal which had earlier been ordered to be fixed alongwith the petition, ought to have been allowed. We have read the judgment in question and must state with due respect that we are unable to subscribe to this contention. Learned counsel is indeed correct to the extent that this Court had authoritatively held that the consignment imported by the petitioner was entitled to the exemption granted by S.R.O. 484(I)/92. Nevertheless the text of the Notification, which has been brought to our attention by Mr. Raja Muhammad Iqbal, learned counsel for the respondent reads as under:--

"In exercise of the powers conferred by section 19 of the Customs Act (IV of 1969) and section 13, of the Sales Tax Act, 1990 and in supersession of this Ministry's Notification No.S.R.O. 50(I)/92, dated 28-1-1992, the Federal Government is pleased to exempt such plant and machinery as is not manufactured locally and is imported during the period .... . "(underling ours)

It is important to keep in view that the Notification only exempted such plant and machinery which was not manufactured locally. In the instant case there is definite finding of fact recorded by the learned Tribunal to the effect that the appellant were not entitled to exemption because of kind machinery imported by them, was also being manufactured locally. The judgment in C. P. No. 1244 of 1997 does not touch this issue at all. In view of the above, we are constrained to observe that only a question of fact being involved in respect of which there is concurrent finding of appropriate Tribunal, it is not possible to interfere under section 196 of the Customs Act. This appeal is accordingly dismissed.

S.A.K./F-52/KAppeal dismissed.