Messrs AHMED HASSAN TEXTILE MILLS LTD. through Chairman VS FEDERATION OF PAKISTAN through Secretary of Law, Justice & Human Right Division, Islamabad and 4 others
2005 P T D 2455
[Lahore High Court]
Before Maulvi Anwarul Haq, J
Messrs AHMED HASSAN TEXTILE MILLS LTD. through Chairman
Versus
FEDERATION OF PAKISTAN through Secretary of Law, Justice & Human Right Division, Islamabad and 4 others
Writ Petition No. 4517 of 2005, decided on /01/.
th
July, 2005. Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---
---Ss. 9, 10, 13, 14 & 32---Customs Act (IV of 1969), S. 19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Levy of surcharge---Exemption---Complaint before Federal Tax Ombudsman--Reference to the President---Petitioner had claimed that Bank guarantee furnished by him in a sum equal to 30% of Customs duty, was cancelled and that entire amount representing 30% of said duties having been paid he made request for release of said Bank guarantee---Matter was referred to Central Board of Revenue and Secretary C.B.R. intimated that there was no exemption of import surcharge qua locally manufactured machinery and petitioner was called upon to pay the surcharge---On filing complaint by petitioner before Federal Tax Ombudsman, Ombudsman directed release of Bank guarantee to petitioner and advised the Department to pursue recovery of surcharge separately in accordance with law---Representation filed by the Department before the President against order of Ombudsman, having been allowed, petitioner had filed Constitutional petition against said order---Validity---Order of the President conveyed by Federal Secretary Law stated that petitioner was duly confronted with representation and he filed his comments thereto---Reasons recorded were that Ombudsman had not recorded a finding that import surcharge was not payable---Since according to the President surcharge was payable, one of the modes of recovery available would be to adjust said payable surcharge against Bank guarantee furnished by petitioner---Such reasons could neither be stated to be perverse nor illegal within the confines of Constitutional jurisdiction---Constitutional petition was dismissed.
Muhammad Hussain and another v. Federation of Pakistan through Secretary, Law, Justice and another 2003 YLR 2793; Messrs Eastern Leather Company (Pvt.) Ltd. v. Raja Qamar Sultan, Section Officer, Government of Pakistan., Islamabad and 4 others PLD 2004 Lah. 83; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCN R 2744 and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 ref.
Omer Arshad for Petitioner.
ORDER
The petitioner imported some machinery which according to the learned counsel enjoyed exemption from payment of customs duty vide S.R.O. No.530(I)/90, dated 7-6-1990. Similarly, exemption from payment of import surcharge was also available under S.R.O. No.480(I)/88, dated 26-6-1988 as amended vide S.R.O. No.501(I)/89, dated 3-6-1989 and S.R.O. No.568(I)/89, dated 3-6-1989. This machinery was released against Insurance Guarantee in the sum of the entire amount of customs duty payable. The issue as to whether the machinery imported by the petitioner is locally manufactured remained under consideration. Another S.R.O. No.1076(I)/95, dated 5-11-1995 was issued t y the Federal Government exempting the said machinery imported during the period from 14-6-1984 to 30-6-1995 to the extent it was in excess of 30% of the leviable rates of customs duty and sales tax at the time of filing of bill of entry, on terms stated. According to the learned counsel, his client furnished a bank guarantee in a sum equal to 30% of the said duties and consequently the said Insurance Guarantee, dated 31-7-1991 was cancelled and returned to the petitioner. Learned counsel further states that the entire amount representing 30% of the said duties has been paid by his client who made a request for release of the said bank guarantee. The matter was referred to C.B.R. by the respondent No.4 and the respondent No.5 intimated, on 10-1-2002 that A there was no exemption of import surcharge qua locally manufactured machinery. The petitioner was accordingly called upon to pay the said surcharge. Feeling aggrieved the petitioner opted to file a complaint before the learned Federal Tax Ombudsman. Vide findings recorded on 16-2-2002 the learned Tax Ombudsman directed the release of the bank guarantee to the petitioner and advised the Department to pursue the recovery of surcharge separately in accordance with the law. A representation was filed by the respondents before the President of the country who allowed the same as per intimation given by the respondent No.1 on 4-6-2005.
2. Learned counsel with reference to the cases of Muhammad Hussain and another v. Federation of Pakistan through Secretary, Law, Justice and another (2003 YLR 2793), Messrs Eastern Leather Company (Pvt.) Ltd. v. Raja Qamar Sultan, Section Officer, Government of Pakistan, Islamabad and 4 others (PLD 2004 Lahore 83) and a judgment, dated 13-10-2004 of this Court in W.P. N0.19346 of 2002 urges that the President could not have allowed the representation and consequently passed an order to the detriment of the petitioner without affording hearing to him and since this has not been done, the order passed by the President on the representation of the respondents is without lawful authority.
3. I have examined the several documents and orders accompanying this writ petition, with the assistance of the learned counsel and have considered the said contentions, of the learned counsel. Now it is but apparent that the petitioner faced with the said demand of the respondents opted to get the matter decided under the provisions of the B Federal Tax Ombudsman Ordinance, 2000. He filed a complaint which 'was decided in his favour vide findings recorded by the learned Ombudsman. The Department availed remedy of representation before the President which was allowed.
4. Now I find that the said judgments being relied upon by the learned counsel referred to the cases of Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others (1999 SCMR 2744) and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others (1999 SCMR 2189). I have gone through the said judgments of the Hon'ble Supreme Court of Pakistan. In my humble opinion, the said judgments do not at all direct a hearing in the representation in the normal sense and meaning of the said term as being pressed by the learned counsel with reference to the said judgments of this Court. Now according to the facts recorded in the said judgment passed in the original civil petition their Lordships found that the learned Ombudsman has stated reasons for the findings recorded while the President had proceeded to allow the representation without stating any reasons what soever. It was in the said context that the matter was considered. I do find it advantageous to reproduce here the following excerpts from the said judgment in para-10 thereof appearing at page 2750 of the report:--
"(10) The President under the Order is a statutory body and has to function as such under the provisions and the scheme envisaged by the Order. It could not be the intention of the Legislature that disposal of the representation be made in an arbitrary manner. Even if it is assumed that the institution of Wafaqi Mohtasib is an administrative body and the President also acts in administrative capacity while disposing of a petition under Article 32 of the Order, an aggrieved person in whose favour a recommendation has been made/finding recorded by the Mohtasib, has legal right to demand that an adverse decision should not be taken against him in violation of the principle of natural justice. It is true that there is no provision for affording a hearing either to the person who lodged a complaint before the Mohtasib or the representationist. Nevertheless, a favourable order having accrued in favour of a complainant, cannot be brushed aside by setting aside the recommendation of the Mohtasib without assigning any reason whatsoever. The recording of valid reasons while setting aside the recommendation of the Mohtasib would be the minimum requirement of law consistent with the principle of natural justice, under the scheme of the Order."
5. I, therefore, do find that the said judgment does not mandate a hearing and the criteria laid down is that the order of the learned Ombudsman can be set aside after recording of valid reasons.
6. Now examining the present case in the light of the said observations of the Hon'ble Supreme Court of Pakistan, I find that the order of the President conveyed by the respondent No.1 does state that the petitioner was duly confronted with the said representation and he filed his comments thereto. The reasons recorded are that the learned Ombudsman has not recorded a finding that the import surcharge was not payable and since according to the President the said surcharge is payable, one of the modes of recovery available would be to adjust the said payable surcharge against the Bank Guarantee furnished by the petitioner. To my mind, the said reasons can neither be stated to be perverse or illegal within the confines of the Constitutional jurisdiction. The writ petition accordingly is dismissed in limine.
H.B.T./A-562/LPetition allowed.