CENTRAL BOARD OF REVENUE, ISLAMABAD VS Messrs TRIPPLE EM (PVT.) LTD., 2006 PTD-LAHORE-HIGH-COURT-LAHORE 256 (2004)

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

----S. 84---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Application to warehouse---Permission to warehouse the goods was not refused through some speaking written order and Department had not taken any plea in its comments filed in the constitutional petition that inbonding was not refused verbally, resulting exposure to heat and moisture for 27 days to the imported goods on the dry port---Refusal order, in circumstances, was arbitrary, fanciful and contrary to law in view of provisions of S.84, Customs Act, 1969---Inbonding having been refused through verbal orders, without order in writing contrary to the law, there was no question of availing statutory remedy by the importer and the Department 'could not be heard saying that in spite of verbal orders, importer be directed to avail the remedy of appeal in place of constitutional petition---Constitutional petition was maintainable in circumstances.

Abdul Zaheer and another v. Director General Pakistan Coast Guards and 4 others PLD 1990 Kar. 412; Islamia University Bahawalpur though Vice-Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah.141 and Messrs Kamran Industries v. The Collector of Customs (Export), Karachi and 4 others PLD 1996 Kar. 68 ref.

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

---Ss. 115 & 84---Constitution of Pakistan (1973), Art.199---Constitutional petition---Refusal of inbonding facility to the importer---Powers to remit duties on warehoused goods lost or destroyed---Collector of Customs was empowered under S.115, Customs Act, 1969 to remit duty of warehoused goods which had been lost or destroyed yet in view of the damage on account of refusal of facility of inbonding, the Collector recommended the case of the importer to C.B.R. who had ample powers to direct refund of duties/ taxes charged on account of lapse on the part of the Department, but being oblivious of its powers, it erroneously refused the recommended prayer---High Court, in circumstances had rightly issued writ against such orders.

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

----S. 84---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Application to warehouse---Until some order in writing refusing the inbonding facility, had been passed, invocation of constitutional jurisdiction could not have been refused to the importer.

A. Karim Malik for Appellant.

Mushtaq Ahmad Chaudhaty for Respondent.

Date of hearing: 2nd June, 2004.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.---This Intra-Court Appeal is directed against the judgment, dated 27-6-1997 passed in Writ Petition No.14514 of 1993, whereby writ was issued with a direction to the appellants to refund the duty/tax charged on 174 reels of Polyester Metalized Laminated Coated Films which were damaged on account of refusal of inbonding facility by the appellants.

2. Precisely, relevant facts are that the respondent being manufacturer of Food items such as Potato Chips, Nimko, Dal Mong, Fried Peanuts/Almonds etc. for wrapping those products imported a ^"Polyester Metalized Laminated Coated Films". The consignment of 590 reels arrived at Lahore Dry Port, on 24-9-1990. Inbonding bill of entry was filed on the same day but Custom Authorities denied inbonding, in result of which imported goods remained at the Port for 27 days whereafter on the intervention of Customs Collector, inbonding was allowed. Due to exposure to sun heat, rain and moisture for 27 days, 174 reels were damaged as reported by the Inspector Customs, Bonds Section Dry Port, Lahore, vide his report, dated 21-7-1990. Sample of the damaged reels was also sent to the P.C.S.I.R. Laboratories for examination who reported that the sample Film is not suitable for the packing of Food products.

3. The petitioner filed a representation before the Chairman Central Board of Revenue for remission of the Custom Duty on the damaged 174 reels through Collector Customs, who recommended the claim of the respondent through his letter, dated 20-12-1990. The Central Board of Revenue on 4-9-1993 found that the case of the respondent merited no relief of refund, necessitating filing of constitutional petition which after due process was accepted on 27-6-1997 through the judgment impugned. The appellants filed the instant ICA for setting aside the judgment by the learned Single Judge in Chambers of this Court. The appeal was admitted to regular hearing and after completion of record, has now been placed for final determination.

4. The learned counsel for the appellants submitted that right of hearing to the importer could have been granted at the adjudication stage and not in respect of the proceedings earlier to it. He further contended that the case of the respondent was not covered by sections 27 and 115 of the Customs Act 1969 and thus, refund claimed could not have been allowed but a contrary view taken in the impugned judgment, is not in consonance with law. It was also submitted on behalf of the appellants that inbonding facility could not have been claimed as of right because the respondent also had this facility within its premises. According to him, in view of alternative remedy available to the respondent under Customs Act, 1969, the constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, should not have-been entertained.

5. The learned counsel appearing on behalf of the respondent refuted the arguments of the appellants, supported the judgment impugned and urged that inbonding was erroneously refused verbally which after lapse of 27 days was allowed on the intervention of the Collector, inspite of the fact that the respondent is owner of a private warehouse and is a licensee of inbonding. He further contended that though initially order of refusal of refund was not conveyed to the respondent necessitating representation to C.B.R. yet the case of the petitioner besides positive proof of damage to 174 reels, was approved by the Collector Customs concerned. According to him, since no order of refusal of inbonding was passed in writing, hence, there is no question of filing appeal under the provisions of the Customs Act, 1969. In support of his submission that constitutional petition was maintainable, he referred to the judgment in the cases Abdul Zaheer and another v. Director General Pakistan Coast Guards and 4 others (PLD 1990 Karachi 412), and Islamia University Bahawalpur though Vice-Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141). The learned counsel for the respondent also argued that provisions of sections 27 and 115 of the Customs Act support the claimed refund, as under latter provision. C.B_BR. was competent to grant the remission but order impugned in the writ petition was passed, oblivious of these powers.

6. We have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably respondent is a licensee of inbonding, being an owner of private warehouse. Under section 84 of the Customs Act, 1969 an importer has to apply for deposit of his imported goods in warehouse and permission to this effect cannot be refused by the Collector except for the reasons to be recorded in writing. It is not a case of the appellant that inbonding was refused through some speaking written order and they have also not taken any plea in their comments filed in the writ petition that inbonding was not refused verbally, resulting exposure to heat and moisture for 27 days to the imported goods on the Dry Port, thus in view of the provisions of section 84 of the Act (ibid) refusal order is arbitrary, fanciful, and contrary to law.

7. Though section 115 of the Customs Act, 1969, empowers the Collector to remit duty of warehoused goods which have been lost or destroyed yet in view of the damage on account of refusal of facility of inbonding the Collector recommended the case of the respondent to C.B.R. who was amply empowered to direct refund of duties/taxes charged on account of lapse on the part of the Department but it being oblivious of his these powers, erroneously refused the recommended prayer.

8. Since, inbonding was refused through verbal order, without order in writing contrary to the law, as discussed in the case of Abdul Zaheer and another (supra) there was no question of availing statutory remedy by the respondent and the appellants cannot be heard, saying that inspite of verbal orders, respondent be directed to avail the remedy of appeal, in place of filing the constitutional petition. A Division Bench of the Sindh High Court in the, case of _Messrs Kamran Industries v. The Collector of Customs (Export), 11th Floor Customs House, Karachi and 4 others (PLD 1996 Karachi 68) held that in the given circumstances the constitutional petition was maintainable. We are of the considered view that unless and until some order in writing refusing the inbonding, had been passed, invocation of constitutional jurisdiction could not have been refused to the respondent and on this basis judgment impugned cannot be set aside.

9. For what has been discussed above, we are of the considered view that the learned Single Judge in Chambers of this Court, took a correct and lawful view of the matter and rightly issued the writ, as prayed. We are not persuaded to take a different view to the one taken through the impugned judgment. The instant appeal has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs.

M.B.A./C-30/L??????????????????????????????????????????????????????????????????????? Appeal dismissed.