Mst. TASNIM AKHTAR VS GOVERNMENT OF PAKISTAN
2006 P T D 1261
[Lahore High Court]
Before Nasim Sikandar, J
Mst. TASNIM AKHTAR
Versus
GOVERNMENT OF PAKISTAN and others
W.P. No.3363 of 2004, decided on 27/10/2004.
(a) Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000---
----R. 7---Customs Act (IV of 1969), Ss. 168, 194-A & 196---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Import of vehicle under Personal Baggage Scheme---Refusal of revenue to clear vehicle for being two years old as same was not covered by such Scheme---Constitutional petition was filed by importer during pendency of his appeal before Appellate Tribunal---Maintainability---Issue as to year of manufacturing of vehicle could not be converted into one of law or interpretation of Constitution or other legal provisions for framing question of law before High Court---Importer being appellant before Tribunal could not complain of inefficacy of proceedings before Tribunal---Tax-payer could approach High Court under S.196 of Customs Act, 1969 against an order of Tribunal giving rise to a question of law---Importer had not challenged any specific order of revenue---Communication referred to in constitutional petition had not resulted into an action adverse to importer's interest---Deviation of revenue from its original stand by raising additional defence with regard to year of manufacturing of vehicle, could not justify exercise of constitutional jurisdiction---Interference at such stage by High Court would amount to pre-empt not only judgment of Tribunal, but would circumvent appellate hierarchy under Customs Act, 1969 including High Court as well as Supreme Court---Importer could place his arguments before Tribunal being a forum of fact as well as of law---High Court dismissed constitutional petition in limine.
Republic Motors Ltd. v. Income Tax Officer and others 1990 PTD 889; Pakistan and others v. Qazi Ziaud Din PLD 1962 SC 440; Muhammad Ashraf v. Board of Revenue PLD 1968 Lah. 1155; Messrs Usmania Glass Sheet Factory v. S.T.O. PLD 1971 SC 205; Julian Dinshaw v. ITO 1992 PTD 1 = 1992 SCMR 250; Attock Cement v. Collector of Customs 1999 PTD 1892; Gul Ahmad Textile Mills v. Collector of Customs 1990 MLD 126; Maple Leaf Cement v. Federation of Pakistan and others 1999 PTD 3907; United Business Lines v. Government of Punjab PLD 1997 Lah. 456; Ikram Bus Service and others v. Board of Revenue and others PLD 1963 SC 564; Al-Samrez 'Enterprise v. Federation of Pakistan 1986 SCMR 1917, Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. PLD 1970 SC 439; Bilal Ahmad Malik v. Secretary, Ministry of Commerce PLD 1963 (W.P.) Kar. 981; Lever Brothers Pakistan Ltd. v. Government of Punjab PLD 2000 Lah. 1; Pakistan v. Fecto Balarus Tractors Ltd. PLD 2002 SC 208; Federation of Pakistan v. Ch. M. Aslam 1986 SCMR 916; Messrs Gadoon Textile Mills v. WAPDA 1997 SCMR 641; Pakistan v. Hussain Ali Shah PLD 1960 SC 310; Ghulam Nabi v. Province of Sindh and others PLD 1999 Kar. 372; Messrs Shadman Cotton Mills Ltd. v. Federation of Pakistan 2001 CLC 385; Messrs Syed Bhais v. Chairman, C.B.R. 2001 CLC 1445; Union of India v. Messrs Anglo Afghan Agencies AIR 1968 SC 718; Hashwani Hotels v. Federation of Pakistan PLD 1997 SC 315; Sheikh Fazal Ahmad v. Raja Ziaullah Khan PLD 1964 SC 494; Anisa Rehman v. PIAC 1994 SCMR 2232; Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; Pakistan v. Public at Large PLD 1987 SC 304; Indep Newspapers v. Wage Board 1993 SCMR 1533; Chairman RTA v. Pakistan Mutual Insurance Co. PLD 1991 SC 14 and Collector of Customs v. Muhammad Tasleem 2002 MLD 296 ref.
Punjab Beverage Company (Pvt.) Ltd. v. Central Board of Revenue 2001 PTD 3929 and Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 rel.
(b) Order---
----Correspondence between two Government Departments---Not an order.
Aitzaz Ahsan and Barrister Sultan Tanvir for Petitioner.
Ahmar Bilal Soofi for Respondents.
ORDER
NASIM SIKANDAR, J.---(1) The petitioner claims to have imported a vehicle under the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 under a valid import permit issued to her in accordance with the said scheme. However, on arrival of the vehicle at Lahore, the respondent/Revenue refused to clear the same on the ground of its being more than two years old. According to the Revenue the vehicle was found to have been manufactured in 2000 and not in 2001 as was claimed by the petitioner for the purpose of its import under the said scheme. The petitioner claims to have approached the Central Board of Revenue (C.B.R.) as well as other Federal Government departments but without any success. Thereafter she was served with a show-cause notice on 2-9-2003. A reply was made to the notice, which was not accepted and finally after usual proceedings an order-in-original was recorded against her on 19-11-2003 by Mr. Muhammad Raza Baqar, Collector Customs, Lahore directing confiscation of the vehicle in question. The petitioner has filed an appeal against the order-in-original before the Customs, Excise and Sales Tax Appellate Tribunal, Lahore. In the meanwhile through this constitutional petition, for the various reasons stated therein, she seeks grant of the following prayer:--
"In view of the above, it is most respectfully prayed that this Honourable Court be pleased to:--
(1) set aside the Impugned Letters and the Impugned Order;
(2) declare that no case of violation of the Import Rule has been made out so that the petitioner is entitled to the clearance of the Vehicle by the Respondents in terms of the Import Rules;
or in the alternative
direct the Respondents to exercise the discretion vested in them under Rule 7 of the Import Rules and to allow the release of the Vehicle to the Petitioner on the ground of hardship in relaxation of the Import Rules;
or in the alternative
declare that S.R.O. 485(I)/2003, is not applicable retrospectively to the present case; accordingly, the Respondents be directed to allow clearance of the Vehicle to the Petitioner in terms of S.R.O. 374(I)/2002;
(3) restrain Respondent No.3 from confiscating and/or auctioning off the Vehicle or using it or removing or disposing it off in any manner whatsoever;
(4) grant costs of the petition; and
(5) grant such other relief as deemed fit in the circumstances of the present case."
2. In order to reply the objection against maintainability of the petition as raised by the Revenue, learned counsel for the petitioner has cited a plethora of case law. On the authority of re: Republic Motors Ltd. v. Income Tax Officer and others (1990 PTD 889), re: Pakistan and others v. Qazi Ziaud Din (PLD 1962 SC 440) and re: Muhammad Ashraf v. Board of Revenue (PLD 1968 Lah. 1155) it is claimed that a constitutional petition is competent even when an appeal before a forum for similar relief is pending. It is also stated that the Courts have adopted a liberal view of the constitutional guarantees in cases where fiscal rights are involved. Reliance in that regard is placed upon in re: Messrs Usmania Glass Sheet Factory v. S.T.O. (PLD 1971 SC 205), re: Julian Dinshaw v. ITO 1992 PTD 1 = 1992 SCMR 250 and re: Attock Cement v. Collector of Customs 1999 PTD 1892. It is further claimed that since the matter in hand involves interpretation of law, particularly of the provisions of S.R.O. 486(I)/2003 this constitutional petition is otherwise maintainable in view of the ratio settled in re: Gul Ahmad Textile Mills v. Collector of Customs 1990 MLD 126, re: Maple Leaf Cement v. Federation of Pakistan and others (1999 PTD 3907), re: United Business Lines v. Govt. of Punjab PLD 1997 Lah. 456. It is also asserted on the authority of the ratio settled in re: Ikram Bus Service and others v. Board of Revenue and others (PLD 1963 SC 564) that a constitutional petition would be maintainable where the impugned action is without jurisdiction.
3. Learned counsel has also relied upon a number of judgments to support his contention that the Revenue is barred from charging duties or confiscating out-rightly the vehicle in question in view of the promises held out to the donor, the husband of the petitioner, in terms of the said scheme. The principle of promissory estoppel in such situation is sought to be supported by the ratio settled in re: Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917, re: Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. (PLD 1970 SC 439), re: Bilal Ahmad Malik v. Secretary, Ministry of Commerce (PLD 1963 (W.P.) Kar. 981), re: Lever Brothers Pakistan Ltd. v. Govt. of Punjab (PLD 2000 Lah. 1), re: Pakistan v. Fecto Balarus Tractors Ltd. (PLD 2002 SC 208), re: Federation of Pakistan v. Ch. M. Aslam (1986 SCMR 916), re: Messrs Gadoon Textile Mills v. WAPDA (1997 SCMR 641), re: Pakistan v. Hussain Ali Shah (PLD 1960 SC 310), re: Ghulam Nabi v. Province of Sindh and others (PLD 1999 Kar. 372), re: Messrs Shadman Cotton Mills Ltd. v. Federation of Pakistan (2001 CLC 385), re: Messrs Syed Bhais v. Chairman, C.B.R. (2001 CLC 1445) and re: Union of India v. Messrs Anglo Afghan Agencies (AIR 1968 SC. 718). As far the application of the said S.R.O. 485(I)/2003 to the import in hand is concerned, the learned counsel relies upon in re: Hashwani Hotels v. Federation of Pakistan (PLD 1997 SC 315) and re: Sheikh Fazal Ahmad v. Raja Ziaullah Khan (PLD 1964 SC 494) to oppose its retrospective application. It is also alleged that no hearing having been provided to the petitioner, the impugned order cannot be sustained in view of the dictum laid down by the Hon'ble Supreme Court in re: Anisa Rehman v. PIAC (1994 SCMR 2232), re: Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45) and re: Pakistan v. Public at Large (PLD 1987 SC 304). Lastly, that a discretion vested in the Revenue and other Government functionaries having been exercised arbitrarily a constitutional petition would be maintained in ; view of the judgments of the Apex Court in re: Indep Newspapers v. Wage Board (1993 SCMR 1533), re: Chairman RTA v. Pakistan Mutual Insurance Co. (PLD 1991 SC 14) and re: Collector of Customs v. Muhammad Tasleem (2002 MLD 296).
4. After hearing the learned counsel for the parties I am inclined to sustain the legal objection and to refuse interference for the following reasons:--
Firstly, the learned counsel for the Revenue is correct is submitting that the most recent view of the Hon'ble Supreme Court of Pakistan in re: Punjab Beverage Company (Pvt.) Ltd. v. Central Board of Revenue (2001 PTD 3929) enjoins upon a High Court not to involve itself in a thorough probe or in-depth investigation of disputed questions of fact, which necessitates taking of evidence. In the view of their Lordships as expressed in the said judgment constitutional jurisdiction was primarily meant to provide expeditious and efficacious remedy in the cases where illegality, impropriety and flagrant violation of law was apparent, which could be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Learned counsel is also correct in pointing out that in the final analysis the only issue around which the order in original revolves pertains to the year of manufacturing of vehicle imported under the said scheme. That issue, I will agree cannot in any manner be converted into one of law, or interpretation of constitution or other legal provisions by using phraseology which is common to framing of questions of law before this Court.
Secondly, I will not agree that the petitioner has no effective and efficacious remedy available to her under the law. Already being an appellant before the said Customs, Excise and Sales Tax Appellate Tribunal, Lahore the petitioner cannot complain of the inefficacy of the proceedings before that forum. It needs to be noted that a tax payer can always approach this Court under section 196 of the Customs Act, 1969 against an order of the Tribunal where a question of law arises therefrom. In re: Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881) the Hon'ble Supreme Court disapproved interference by a High Court in exercise of writ jurisdiction where the Court itself or the Supreme Court was ultimate repository in appellate, revisional or referable jurisdiction.
Thirdly, I have my reservations to the application of principle of promissory estoppel to the facts in hand. As also to the alleged retrospective application of the said S.R.O. Since the matter remains pending before the Tribunal and in case any of the parties is dissatisfied with the orders of the Tribunal the matter may be lifted to this Court, I will refrain from expressing myself any further on these arguments. The assertion that the petitioner has been condemned unheard is also not supported by record. Not only that she replied the show-cause notice through her present co-counsel Barrister Sultan Tanvir, Advocate but also he participated in the proceedings before the original authority, which finally resulted in passing of the order in original, dated 19-11-2003.
Fourthly, no specific order has been challenged in this petition. AI correspondence between the two Government departments is not C an order. The communications referred to in the body of the petition as also in the petition have not directly resulted into an action adverse to the interest of the petitioner. Mere fact that after filing of the petition the Revenue by way of additional defence deviated from the original stand with regard to the basis of determination of year of manufacturing of vehicle also cannot be a justification for exercise of constitutional jurisdiction. These arguments can very well be placed before the learned Tribunal, which is a forum both of fact as well as of law.
Lastly, an interference for the petitioner at this stage when her appeal is still pending before the Tribunal would amount to pre-empt not the only judgment of the Tribunal but will also circumvent the appellate hierarchy under the Customs Act, 1969, which includes this Court as well as the Hon'ble Supreme Court. Since the latest view of the Hon'ble Supreme Court is amply demonstrated by the aforesaid two judgments, the cases relied upon by, the learned counsel in support of the maintainability of the petition need not to be discussed at any length.
5. Petition dismissed in limine.
S.A.K./T-8/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.