MANZOOR A. MALIK VS FEDERATION OF PAKISTAN, MINISTRY OF FINANCE, ISLAMABAD, 2004 PTD-LAHORE-HIGH-COURT-LAHORE 632 (2003)

Customs- Act (IV of 1969)---

----S. 32---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Claim for refund---Amount received by Government not lawfully due from the importer---Plea of Government that claim was time-barred would be violative of morality and justice, and could not be looked upon with favour.

Pfizer Laboratories Limited's case PLD 1998 SC 64 fol.

Ms. Rukhshanda Shaheen for Petitioner.

Mrs. Farhat Zafar for Respondents.

Date of hearing: 14th November, 2003.

JUDGMENT

Comments have been filed. Learned counsel for the respondents has put in appearance. Both the learned counsel are prepared with their arguments. This case is being decided as Pacca case.

2. Learned Counsel for the petitioner contends that it stands admitted that the, amount of tax/duty recovered from the petitioner while assessing the car in question was not due and as such her client is entitled to refund. She draws my attention to the relevant P.T.O. Heading (8702.1010) according to which the duty payable was 60% ad valorem whereas respondent charged the same at the rate of 110% ad valorem. She relies on the case of Messrs Pfizer Laboratories Limited (PLD 1998 Supreme Court 64). Learned counsel for the respondents, on the other hand, contends that the assessment was made in the presence and in accordance with request of the petitioner and now when limitation has gone by he cannot turn round and question the same and claim refund.

3. I have gone through the writ petition, and the comments and documents appended by both the parties. A bare perusal of comments, would show that the respondents have not denied that they have charged and recovered tax from the petitioner at an excess rate which was not due from him. Learned counsel for the respondents is unable to justify charging of a sum of Rs.3,47,780 towards duty/tax from the petitioner in the matter of 1985 model vehicle which was inspected and then assessed by the respondents-Authority.

4. Now only defence raised is that claim for refund is barred by time. To my mind, the said judgment of the Hon'ble Supreme Court in the said case of "Messrs Pfizer Laboratories Limited' is complete answer to the said defence plea. According to the dictum in the circumstances of the present case, where admittedly some money has been received by the respondent-Government from the petitioner which is not lawfully due, the plea being raised is violative of morality and justice and cannot be looked upon with favour.

5. This writ petition is accordingly allowed and the respondent No.3 is directed to work out claim of refund, to be filed with all particulars by the petitioner before the said Officer immediately and to refund amount received over and above the due amount to the petitioner. Compliance report to be filed with D.R.(J) of this Court within 8 weeks of receipt of this order which has been announced in the presence of the learned counsel for the respondents.

S.A.K./M-2461/L Petition allowed.