ARSHAD HUSSAIN VS COLLECTOR OF CUSTOMS, 2010 PTD-KARACHI-HIGH-COURT-SINDH 104 (2009)

Customs Act (IV of 1969)---

----Ss.25, 194-A & 196---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Enhancement of the declared value of the imported goods---Appeal to Appellate Tribunal---After the filing of the constitutional petition, authorities had initiated action to decide the issue which had been impugned in the constitutional petition and had passed an order-in-original-Petitioner instead of impugning said order in original in constitutional petition filed an appeal against the same before the Appellate Tribunal which was ultimately dismissed by the Tribunal for non-prosecution-Without going into the legality or otherwise of the order of the Tribunal dismissing the appeal for non-prosecution and the order in original as same had not been challenged before the High Court, it was observed that under the theory of merger, the order in original had merged in the order of the Tribunal and had become a past and closed transaction---Petitioner at his own sweet will and whims could not be allowed to impugn the same cause of action in a constitutional petition filed before the High Court and at the same time pursue the remedies available under the relevant law---Once after the passing of the order in original, the petitioner opted to file appeal before the Tribunal instead of impugning same in the constitutional petition before the High Court and the Tribunal had also dismissed his appeal in the meantime---Only remedy available to the petitioner was to file reference application before the High Court; or seek restoration or recall or rectification of the order of the Tribunal---Petition pending before High Court for all practical purposes had become infructuous and not maintainable.

Noor Elahi and others v. Member, Board of Revenue and others 2003 SCMR 1045; Commissioner of Income Tax, Companies-II and others v. Hamdard Dawakhana (WAQF), Karachi PLD 1992 SC 847; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Commissioner of Income Tax, Karachi and 2 others v. N. V. Philif's Gloeilampen -fabriaken, Karachi PLD 1993 SC 434 = 1993 PTD 865 and Messrs Pak-Saudi Fertilizers Ltd. v. Federation of Pakistan and others 2002 PTD 679 ref.

Khawaja Shamsul Islam for Petitioner.

Raja Mohammad Iqbal for Respondent.

ORDER

MUHAMMAD ATHAR SAEED, J.---This constitutional Petition had been filed by an importer dealing in the business of Importing miscellaneous item from abroad, impugning the action of the respondents in enhancing the declared value of the imported goods on the first examination and burdening him with custom duty of Rs.7,48,593.00 instead of declared custom duty of Rs.98,450.00.

2. After the petitioner approached this Court, this Court vide its order, dated 21-5-2002 directed the respondents to release the goods of the petitioner upon furnishing of bank guarantee in the sum of Rs.7,48,593.00 to the satisfaction of the Nazir of this Court and also directed the respondents to proceed to decide the issue, stated by the respondents, within 45 days.

3. We have heard Mr. Khawaja Shamsul Islam the learned counsel for the petitioner and Mr. Raja Mohammad Iqbal learned counsel for the respondent.

4. At the outset of his arguments, Mr. Raja Muhammad Iqbal learned counsel for the respondent submitted Letter No.SI/Misc/60/2002-AIB, dated 6-9-2007 written by the Deputy Collector of Customs to him vide which the following documents were attached:-

(i) Copy of show-cause notice, dated 18-5-2002

(ii) Copy of assessment order, dated 2-12-2002

(iii) Copy of corrigendum to show-cause notice, dated 24-6-2003

(iv) Copy of order-in-original No. 89/2003, dated 17-11-2003.

(v) Copy of order of Customs Excise and Sales Tax Appellate Tribunal Bench-III in Customs Appeal No.K-10/2004, dated 21-8-2006.

5. The learned counsel submitted that in accordance with directions of this Court the respondents had proceeded to finalize the issue and in this connection had issued a show-cause notice, dated 18-5-2002 read with corrigendum, dated 24-6-2002 and after providing opportunity to the petitioner and examining his explanation the Order-in-Original No.89 of 2003, dated 17-11-2003 was passed. According to the learned counsel for the respondents, the present petitioner filed an appeal before the Customs Central Excise and Sales Tax Appellate Tribunal and the Tribunal vide its judgment, dated 21-8-2006 in Custom Appeal No.K-10 of 2004, dated 21-8-2006 dismissed the appeal for non-prosecution due to non-attendance of the present petitioner and his counsel before the Tribunal. According to the learned counsel no reference has been filed before this Court and no rectification or restoration application has been filed before the Tribunal so the order of the Tribunal has constitutional and a past and closed transaction and this Court in its constitutional jurisdiction cannot disturb this past and closed transaction. In this connection he relied on the following judgments:--

(1) Noor Elahi and others v. member, Board of Revenue and others (2003 SCMR 1045).

(2) Commissioner of Income Tax, Companies-II and others v. Hamdard Dawakhana (WAQF), Karachi PLD 1992 SC 847)

(3) Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37).

6. He further submitted that the learned counsel cannot be permitted to seek remedy against the same cause of action both in appeal and by pursuing the remedies provided under the Customs Act.

7. Mr. Khawaja Shamsul Islam the learned counsel for the petitioner rebutting the arguments of the learned counsel submitted that this constitutional petition is a clear example of the mala fide and the highhandedness of the customs authorities. He submitted that the present counsel of the respondents Mr. Raja Muhammad Iqbal had informed the respondents through his letter that this Court had directed the respondent to issue show-cause notice whereas no such directions were issued by the Court and, therefore, he initiated contempt proceedings not only against the respondent but also against the learned counsel Mr. Raja Mohammad Iqbal. However, he withdrawn contempt proceedings against Mr. Raja Mohammad Iqbal as he was an Advocate. He submitted that the respondents had illegally on the basis of the directions which were never issued by this Court, followed an illegal path by issuing show-cause notice and corrigendum and finalizing the Order-in-Original on the basis of such illegal show-cause notice. He submitted that there is no provision for issuance of corrigendum in the Customs Act. Even otherwise he stated that he has not been supplied copy of the corrigendum. He further submitted that he had not appeared before the adjudicating authority and his name has wrongly and with mala fide intentions been mentioned in the Order-in-Original as a representative of the present petitioner. The learned counsel further stated that the entire basis adopted by the department for passing the Order-in-Original is illegal, invalid and against the provisions of the Customs Act as the provisions of sections 22 and 25 have not been followed and after first examination there is no' Provision for issuance of show-cause notice or for further enhancement of the value of the declared goods. The learned counsel, continued to argue on the merits of the case.

8. The learned counsel, however, conceded that his client the Present petitioner had filed an appeal before the Tribunal. In reply to a query of the Court the learned counsel also conceded that despite the fact that his client had knowledge of the passing of the Order-in-Original but till today he had not amended the petition to incorporate and challenge the Order-in-Original passed by the respondent. However, the learned counsel submitted that all actions culminating in the Order-in-Original are void ab inito and therefore no legal effect can be given to it and he was not required to challenge the same before this Court in the present petition. He further submitted that this Court can take action by taking notice of the events subsequent to the filing of the constitutional petition. He, however, did not rely on any authority in this regard.

9. We have examined the case in the light of the arguments of the learned counsel. Without considering the merits of the case initially we would like to consider the maintainability of the petition as it is an admitted fact that after the filing of the petition the respondents had initiated action to decide the issue which had been impugned in the petition and had passed an Order-in-Original mentioned above. The petitioner instead of impugning the said Order-in-Original in this petition had filed an appeal against it before the Tribunal which was ultimately dismissed by the Tribunal for non-prosecution. Without going into the legality or otherwise of the order of the Tribunal dismissing the appeal for non-prosecution and the Order-in-Original as the same have not been challenged before us, we may observe that under the theory of merger the Order-in-Original had merged in the order of the Tribunal and has become a past and closed transaction. It is also now a settled law that the petitioner at his own sweet will and whims cannot be allowed to impugn the same cause of action in a writ petition filed before the Court and at the same time pursue the remedies available under the relevant law. In this connection reliance may be placed on a judgment of the Honourable Supreme Court in the case of Commissioner of Income Tax Karachi and 2 others v. N.V. Philie's Gloeilanlpenfabriaken, Karachi PLD 1993 SC 434 = 1993 PTD 865 in this case the Honourable Supreme Court has held as under:--

In the case of Commissioner of Income Tax v. Hamdard Dawakhana (Waqf), Karachi (PLD 1992 SC 847) this Court, while dealing with a similar situation, observed as follows:--

'Before parting with the judgment we may observe that in cases where any party resorts to a statutory remedy against an order he cannot abandon or by pass it without any valid and reasonable cause and file constitutional petition challenging the same order.. Such practice, in cases where statute provides alternate and efficacious remedy up to High Court cannot be approved or encouraged. In a recent judgment of this Court in C.MA. No.79-K of 1991, one of us (AJMAL Mian, J.) in similar situation observed as follows:--

We may now revert to the question, whether the appellant was justified to file above constitutional petition against the order of a Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehan Naqvi, a reference under the above provision would not have adequate .and efficacious remedy as it would have taken years before it could have been heard. The same, could be true for a constitutional petition. The tendency to bypass the remedy provided under the relevant statute and to press into service constitutional jurisdiction of the Court has developed lately, which is to be discouraged. However, in certain cases invoking of constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and or mala fide. To force an aggrieved person in such a case to approach the form provided under the relevant statute may not be just and proper.

In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance up to the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a constitutional petition. In our view, once a party' opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason."

The view taken in the above case has been reaffirmed by this Court in two recent decisions in the case of H.M. Abdullah v. Income Tax Officers (CA 51-K/91) and Wealth Tax Officer and others v. Shoukat and others (CA 189-K/91) decided on 26th and 27th of January, 1993, respectively. The above quoted observations fully apply in the present case, as the respondent had opted for the remedy provided under the statute which is still pending. The respondent, therefore, should have exhausted the remedies under the statute before approaching the High Court in its constitutional jurisdiction. The respondent would be entitled to raise all these contentions before the Income Tax Appellate Tribunal in his pending appeal which he could raise before us. We, accordingly, allow this appeal and set aside the order of High Court.

Reference may also be made to a judgment of this Court in the case of Messrs Pak-Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 PTD 679). In this case Court after exhaustively examining the judgments of the various Courts held that an aggrieved person cannot be permitted to pursue a petition before this Court and avail remedies under the relevant Act at the same time. Relevant extract from the above judgment is reproduced below:--

"(10) In the present case the petitioner has filed the petition after finalization of the assessment order. Even the first appeal was filed by it during the pendency of its petition. Pressing into service the principle of law enunciated in Banarsi Dass (cited supra) the petition is dismissed as not maintainable. As regards the challenge to framing of the main assessment order it is clarified that nothing in this judgment shall preclude the petitioner from pursuing his departmental remedies. The appellate authorities are directed to dispose of appeals strictly in accordance with law without any instructions or directions from any superior or other authority."

10. We are, therefore, of the considered opinion that once after the passing of the Order-in-Original the petitioner opted to file an appeal before the Tribunal instead of impugning it in the present petition before this Court and the Tribunal had also dismissed his appeal in the meantime, the only remedy available to him was to file reference application before this Court or seek restoration or recall or rectification of the Order of the Tribunal and, therefore, the petition pending before this Court for all practical 'purposes has become infructuous and not maintainable.

11. The above are the reasons for the short order passed by us after hearing the learned counsel on 3-9-2009 by which we had dismissed the petition along with all pending applications.

12. In passing we may mention that if law permits the petitioner may still seek appropriate remedy against the order of the Tribunal either by filing an rectification, restoration or an application for recall of the order before the Tribunal or a reference or petition before this Court, The above petition is disposed of in the above manner.

H.B.T./A-157/KPetition dismissed.