AISHA STEEL MILLS LTD. Through Director, Karachi VS FEDERATION OF PAKISTAN through Secretary, Revenue Division/Chairman Federal Board of Revenue, Islamabad, 2011 PTD-KARACHI-HIGH-COURT-SINDH 569 (2010)

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

----Ss. 19, 193 & 194-A---Constitution of Pakistan, Art.199---Imported goods claimed to be exempted from duty under the relevant S. R.O.---Orders of Federal Board of Revenue and Collectorate of Customs refusing to give claimed exemption---Constitutional petition---Maintainability---Remedy of appeal under Ss. 193 & 194-A of Customs Act, 1969 was not available against such orders, same being not appealable thereunder---Such petition involved important question of interpretation as to whether imported goods would or would not fall within provisions of relevant S.R.O.---Petition was maintainable in circumstances.

The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Ltd. Lahore and others 1999 PTD 2174; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Messrs Gul Ahmed Textile Mills v. Collector of Customs (Appraisement), Custom House, Karachi and 2 others 1990 MLD 126 and The Commissioner of Income Tax v.. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 = 2009 PTD 1392 ref.

Noor Elahi and others v. Member, Board of Revenue and others 2003 SCMR 1045; M.A. Kareem Iqbal v. Presiding Officer, Banking Court No.III and 4 others 2003 CLD 1447; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Noor Elahi and others v. Members, Board of Revenue and others 2003 SCMR 1045 and Khalid Mahmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in its discretion would decide to exercise such remedy front case to case, based on facts and circumstances of each case.

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

----S. 19---S.R.O. 575(I)/2006 dated 5-6-2006---Constitution of Pakistan, Art. 199---Constitutional petition-Pre-fabricated buildings/sheds imported for setting up of new industry---Petitioner claimed such buildings/sheds to be exempt from levy of duty by virtue of S.R.O. 575(I)/2006, dated 5-6-2006---Refusal of Federal Board of Revenue to give claimed exemption---Validity---According to Sr. No. 34 of S.R.O. 575(I)/2006, exemption available to such buildings/sheds was in respect of medical sector, hotel, tourism, industries and wholesale and retail stores---According to preamble of S.R.O. 575(I)/2006, exemption provided thereunder was in respect of plant, machinery, equipments, apparatus including capital goods specified in column (2) of Sr. No. 34 of its Table, wherein such buildings/sheds were specified---Word "plant" would include real estate, lands and buildings occupied by a factory or mills---Imported consignment of pre-engineered/ prefabricated steel structure employing crane system quipped with top running crane system being integral component of industrial plants fell within definition of plant, equipment, machinery qualifying for exemption claimed under S.R.O. 575(I)/2006---High Court directed the Authority to provide claimed exemption to petitioner---Principles.

Collector of Customs (Appraisement) Karachi and others v. Fauji Fertilizer Co. Ltd. and others PLD 2005 SC 577 = 2005 PTD 2178); Messrs Moro Textile Mills Limited v. Central Board of Revenue 2007 PTD 60; Messrs Premier Machinery Works, Karachi and others v. Commissioner of Income Tax PLD 1993 SC 233; 19 Queen Bench 647; Scientific Engineering House (Pvt.) Ltd., v. Commissioner of Income Tax AIR 1986 SC 338; The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited 1999 PTD 2174; M.A. Kareem Iqbal v. Presiding Officer Banking Court No.III, and 4 others 2003 CLD 1447; Messrs Huffaz Seamless Pipe Ind. Ltd. v. Collector of Sales Tax, Hyderabad 2010 SCMR 707; Noor Elahi and others v. Member, Board of Revenue and others 2003 SCMR 1045; Muhammad Tufail v. The State 1999 SCMR 1981; Sohail Jute Mills Ltd. and others v. Federation of Pakistan PLD 1991 SC 329; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan 2009 SCMR 1279 = 2009 PTD 1392 and Messrs Gul Ahmed Textile Mills Ltd. v. The Collector of Customs (Appraisement), Custom House, Karachi and 2 others 1990 MLD 126 ref.

D.G. Khan Cement Company Ltd. v. Deputy Collector of the Customs 2003 PTD 986 rel.

(d) Notification---

----Notification would be read as a whole in order to arrive at intent of the authority.

(e) Words and phrases---

----"Plant"---Connotation.

D.G. Khan Cement Company Ltd. v. Deputy Collector of Customs 2003 PTD 986 rel.

(f) Notification---

---Beneficial circulars and notifications would apply retrospectively to all pending matters.

Mansoorul Arfin for Petitioner (in C.P. No.D-308 of 2009).

Khalid Jawed Khan for Petitioner (in C.P. No.D-2330 of 2008).

Zain A. Jatoi and Ghulam Hyder Shaikh for Respondents No.3/Collector of Customs (in C.P. No.D-2330 of 2008).

Raja Muhammad Iqbal for Respondent No.3 (in C.P. No.D-308 of 2009).

S. Mohsin Imam for Respondent (in C.P. No.D-308 of 2009).

Ilyas Ehsan Representative of Collector of Customs.

ORDER

MUHAMMAD ATHER SAEED, J.---These two petitions have been filed impugning the action of the respondents in not granting the exemption/concession under S.R.O. 575(I)/2006 dated 5-6-2006 as amended by S.R.O. 554(I)/2008 dated 11-6-2008 and S.R.O.1226(1)/2008 dated 21-11-2008 in respect of the goods imported by them.

2. Brief facts of the first petition are that the petitioner initiated the process of installing an industrial unit for setting up a state of the art cold rolling mills in Downstream Industrial Estate of Pakistan Steel Bin Qasim. In this connection the petitioner stated that he imported plant and machinery/capital goods including prefabricated building for its project and claimed exemption under the provisions of S.R.O. 575(I)/2006 dated 5-6-2006 vide which the Federal Government was pleased to exempt the plant, equipment, machinery and apparatus including capital goods specified in column 21 of the table given in the S.R.O. falling under the scope specified in the column 4 of that table from so much of the customs duty as specified in the 1st schedule to the said Act and the whole of sales tax levied under the Sales Tax Act, 1990 subject to certain conditions. It was further stated that initially since one of the conditions stipulated in the above mentioned S.R.O. for the availability of the concessionary rate of duty and taxes was that the imported goods were not listed in the locally manufactured items notified through Customs General Order issued by respondent No.1 or certified as such by the respondent No.2 therefore the petitioner addressed letters to respondent No.2 in order to reconfirm the fact that prefabricated buildings were not included in locally manufactured item. However, the correspondence between the petitioner and respondent No. 1 culminated with the letter C.No.I(369)Mach/2001 Islamabad, dated 2nd September, 2008 wherein respondent No.1 finally informed the petitioner that the prefabricated building do not constitute plant, machinery, equipment or capital goods as envisaged in Serial No.21 of the table of S.R.O. mentioned above under which the petitioner was claiming exemption and therefore does not qualify for exemption under the said S.R.O. Aggrieved by this order this petition was filed.

3. The facts in C.P. No.D-308 of 2009 are that the petitioner is a public limited company engaged in manufacturing of Seamless Pipes, Tubes and machinery components and the petitioner company imported consignment of pre-engineered/prefabricated steel structure employing crane system for installation at factory premises at Nooriabad and claimed exemption in the terms of Serial No.21 of S.R.O. 575(I)/2006 dated 5-6-2006.

4. The goods of the petitioner were released provisionally under section 81 of the Customs Act, 1969 subject to the condition that availability of exemption under the above mentioned S.R.O. was approved by respondent No.4 that is the Federal Board of Revenue and for the release of the goods provisionally the petitioner furnished various post dated cheques amounting to Rs. 19,724,733.00. However, the matter was kept pending by respondent No.4 and during this period the respondent No.1 the Collector of Customs vide his letter No.SI/MISC/ OFFICE-143/2008-VI dated 23-1-2009 while making a request to respondent No.4 to clarify whether the goods imported by the petitioner qualify as plant, machinery and capital goods which entitles the petitioner to exemption under the S.R.O. mentioned above, opined that exemption under Serial No.21 of the SRO is not available in respect of prefabricated buildings imported by the petitioners and informed the Board accordingly and as a follow up held that prefabricated buildings do not fall within the definition of capital goods. Earlier the respondent No.2 had tried to cash the postdated cheques deposited by the petitioner on the plea that- necessary approval from respondent No.4 had not been provided. Being aggrieved by the above letters this petition has been filed.

5. Since in both the petitions the interpretation of the provisions of S.R.O.575(I)/2006 dated 5-6-2006 is involved we directed the office to tag the two petitions together and decided to hear them together and dispose them by a common order.

6. We have heard Mr. Khalid Jawaid Khan the learned counsel for the first petitioner and Mr. Mansoorul Arfeen learned counsel for the second petitioner and Mr. Zain A. Jatoi the learned counsel for respondent No.3 in C.P. No.D-2330 of 2008, Mr. Ghulam Haider Shaikh the learned counsel for respondent No.3 in C.P. No.D-2330 of 2008 and Mr. Mohsin Imam the learned counsel for respondent No.3 in C.P. No.D-308 of 2009 instructed by Mr. Ilyas Ahsan representative of the Collector of Customs.

7. Mr. Khalid Jawaid Khan learned counsel for the petitioner in C.P. No.D-2330 of 2008 took us through the provisions of S.R.O. 575(I)/2006 dated 5th June, 2006 and pointed out that by this S.R.O. certain exemptions and concessions were granted on import of plant, machinery, equipment and apparatus including capital goods specified in column 2 of the table attached to this S.R.O. subject to certain conditions. He took us to clause 21 of the said table which provides for exemption in respect of machinery equipment and other capital goods imported by industrial concerns and submitted that it fell within the ambit of the above clause. The learned counsel further drew our, attention to the definition of capital goods given in the explanation to sub-clause (iii) of the S.R.O. whereby capital goods were defined as plant, machinery, equipment, spares and accessories classified in chapters 84, 85 or any other chapter of the Pakistan Customs Tarrif, required for manufacture or production of any goods. The learned counsel then took us through entry 34 of the schedule to S.R.O. 575 which is titled prefabricated buildings and sheds and has been made applicable to the imports of prefabricated buildings made by Medical Sector, Hotel, tourism, sporting and other recreation sectors and wholesale and retail chain stores. He submitted that by including prefabricated buildings in this schedule it is implied that prefabricated buildings fall within the definition of either plant, machinery or capital good because in the preamble of the Notification the exemption has been extended only to plant, machinery, equipment and apparatus including capital goods specified in column 2 of the table and the goods specified in the Table. It can therefore be assumed to be falling in any' or all of these categories. In view of the existence of this clause he argued that the Board cannot blow hot and cold at the same time and discriminate between various sectors by holding that prefabricated buildings fall in the category of exempt items for certain sectors but do not fall under the category of exempt items if used by other sectors. He submitted that although his exemption was refused on the basis that prefabricated buildings do not constitute machinery, equipment or capital goods as envisaged in Serial No.21 of the table of the above S.R.O. but it is now also being claimed by the respondents in their counter affidavit/objections that such prefabricated buildings are also being manufactured locally and exemption is not available as it falls within the ambit of condition (i) of the above S.R.O. which requires that the imported goods not be listed as locally manufactured items. He however submitted that till today he has not been provided any evidence either by Engineering Development Board or by any manufacturer that prefabricated buildings imported by him could be manufactured by any local manufacturer.

8. The learned counsel further submitted that S.R.O. 554(I)/2008 dated 11th June, 2008 has been issued by the Federal Government by which S.R.O. 575 has been amended and Condition No.1 of the said S.R.O. has been substituted as under:--

"(b) For condition (i), the following shall be substituted, namely:

"(i) the imported goods as are not listed in the locally manufactured items, notified through a Customs General Order issued by the Federal Board of Revenue (Federal Board of Revenue) from time to time or, as the case may be, certified as such by the Engineering Development Board. This condition shall, however, not be applicable in respect of Serial Nos.1, 2, 6, 15, 20, 28, 29 and 31 of the Table; and for such machinery equipment and other capital goods imported as plant for setting up of a new industrial units provided the import is made against a valid contract or an irrevocable letter of credit for a minimum C&F value of US $ 50 millions;"

(c) the condition (ia) and the entry relating thereto shall be omitted."

9. The learned counsel went on to submit that this condition (i) has been further amended by S.R.O. 1226(I)/2008 dated 27th November, 2008 by which in the last lines of the condition reproduced above the words "import", "valid contract" and "or letter of credit" have been substituted by their plural versions which according to the learned counsel specifies that now the limit of US $50.00 million is not restricted to one import against one valid contract or L.C. but against total imports of the project. The learned counsel submitted that his total imports for which L.C./L.Cs. was/were opened on 26th March, 2008 and the goods reached the port somewhere in November, 2008, exceeded US $ 50.00 million and he therefore qualified for the exemption/concession on this ground also.

10. In support of his contention that plant machinery and capital goods will include all sorts of equipment required for the- manufacture and production facilities including prefabricated buildings he relied on the following judgments:--

(1)D.G. Khan Cement Company Ltd. v. Deputy Collector of Customs (2003 PTD 986).

(2)Collector of Customs (Appraisement) Karachi and others v. Fauji Fertilizer Co. Ltd. and others (PLD 2005 SC 577 = 2005 PTD 2178)

(3)Messrs Moro Textile Mills Limited v. Central Board of Revenue (2007 PTD 60).

11. On the basis of the above arguments he prayed that the order impugned by him may be set aside and the respondents may be directed to provide him the exemption/concession which is provided by S.R.O. 575 in respect of machinery, plant, equipment and apparatus including capital goods to the prefabricated buildings imported by him.

12. Mr. Mansoorul Arfin the learned counsel for the petitioner in C.P. No. D-308 of 2009 adopted the arguments of Mr. Khalid Jawaid Khan. The learned counsel submitted that he is a manufacturer of seamless pipes and he imported ' from Saudi Arabia a consignment of pre-engineered/prefabricated steel structure employing crane system equipped with top running crane system being integral component for installation at their factory premises and availed the concession available in terms of the S.R.O. 575 read with Serial No.21 of the said S.R.O. He submitted that after various correspondences the respondent No.3 vide his letter No.SI/Misc./Office-143/2008-VI dated 23-1-2009 acting on the information provided by the respondent No.4 refused the exemption in respect of pre fabricated buildings allegedly; for the following reasons: --

"The case has been examined in detail. The case of the importer is that the pre- engineered building imported by them basically is an integral part of the plant and machinery being installed. The catalogue presented by the Company confirms that pre-engineered building is designed with crane bridge and crane runway beams. However, for the purpose of classification, the same will remain in the HS Code 9406.0000. On the other hand, footnote of the S.R.O. 575(I)/2006 explains the word 'capital goods" as under:--

Explanation.---Capital Goods mean any Plant, Machinery, Equipment, spares and accessories, classified in chapters 84, 85 or any other chapter of the Pakistan Customs Tariff, required for-

(a)the manufacture or production of any goods, and includes refractory bricks and materials required for setting up a furnace, catalysts, machine tools, packaging machinery and equipment, refrigeration equipment, power generating etc. and equipment, instruments for testing, research and development, quality control, pollution control and the like;

(b)use in mining, agriculture, fisheries, animal husbandry floriculture, horticulture, livestock, dairy and poultry industry; or

(c)service sectors listed at S. No.16 of the table below, and includes the items mentioned in clause (a) above.

Moreover, the Board has, vide letter C.No.1(369)Mach/2001, dated 6-12-2006."

13. He further submitted that after issuing the above letter the respondents tried to encash the postdated cheques which were furnished by him at the time of clearance of the goods for the disputed portion of the demand. The learned counsel submitted that his pre-engineered/ prefabricated steel structure employing crane system is integral component of the industrial plant and is necessary for the process of production and manufacture of seamless pipes and therefore falls within the ambit of plant, machinery, equipment and apparatus including capital goods for the import of which the exemption/concession specified in the S.R.O. 575 has been provided.

14. In support of his contention that the above pre-fabricated/pre -engineered steel structure falls within the above definition lie relied on the following judgments:--

(1) Messrs Premier Machinery Works, Karachi and others v. Commissioner of Income Tax (PLD 1993 SC 233)

(2) 19 Queen Bench 647

(3) Scientific Engineering House (Pvt.) Ltd., v. Commissioner of Income Tax (AIR 1986 SC 338)

15. On the basis of the above arguments he prayed that the petition may be allowed and the respondents may be directed to provide him the exemption/concession available under S.R.O. 575 and return the postdated cheques back to him.

16. Mr. Zain. Jatoi read clause (i) of S.R.O. 575 and the definition of capital goods and submitted that so far as the capital goods are concerned the exemption/concession is limited to the specific sectors and that is why the prefabricated buildings have been mentioned in serial No.34 and exemption has been provided for the prefabricated buildings only being utilized by the medical Sector, the hotel and tourism industries and supermarkets and chain stores. He therefore submitted that the intention of the law making authority is to be given effect to and by restricting the exemption/concession on account of pre-fabricated buildings to certain sectors the authority has revealed its intention that this exemption/concession is not intended to be provided to the pre-fabricated buildings being used by other sectors.

17. Mr. Ghulam Haider Shaikh submitted that in the C.G.O. it has been provided that the prefabricated buildings are being locally manufactured and the petitioners have not been able to satisfy the requirement that the prefabricated buildings which they have imported are not manufactured in Pakistan and therefore exemption could not have been allowed to them. He further submitted that S.R.O.554(I)/2008 dated 11-6-2008 and the amending S.R.O., 1226(I)/2008, dated 27-11-2008 were issued in June and November, 2008 whereas the LCs were issued and the contracts made somewhere in March, 2008 before coming in force of these S.R.Os and since these S.R.Os have prospective force only therefore they will not be applicable to the case of the petitioner in C.P. No.2330 of 2008.

18. Mr. Mohsin Imam the learned counsel appearing for one of the respondents adopted the arguments of the other learned counsel appearing for the respondents and submitted that the petitions were not maintainable. In this connection he relied on the following judgments:--

(1) The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited (1999 PTD 2174)

(2) M.A. Kareem Iqbal v. Presiding Officer Banking Court No.III, and 4 others (2003 CLD 1447)

19. Mr. Raja Muhammad Iqbal arguing on the pretext that he is the general counsel of the Customs Department relied on previous S.R.Os issued in the years 1982 and 1984 i.e. S.R.Os. 600/1982 and 533/1994 in which capital goods were defined, and relied on the following judgments of the Honourable Supreme Court of Pakistan:--

(1) Messrs Huffaz Seamless Pipe Ind. Ltd. v. Collector of Sales Tax, Hyderabad (2010 SCMR 707)

(2) Noor Elahi and others v. Member, Board of Revenue and others (2003 SCMR 1045)

(3) Muhammad Tufail v. The State (1999 SCMR 1981)

(4) Sohail Jute Mills Ltd. and others v. Federation of Pakistan (PLD 1991 SC 329)

20. Exercising his right of reply Mr. Khalid Jawaid Khan the learned counsel for petitioner rebutted the arguments of the learned counsel for respondents that the petitions were not maintainable and in support of his contentions relied on the judgment of this Court in the case of Messrs Gul Ahmed Textile Mills Ltd. v. The Collector of Customs (Appraisement), Custom House, Karachi and 2 others 1990 MLD 126 and also on the judgment of the Honourable Supreme Court in the case of Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (2009 SCMR 1279 = 2009 PTD 1392).

21. We have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of the case and the judgments relied on by the learned counsel. Although the point of maintainability was taken up last by Mr. Mohsin Imam and Mr. Raja Muhammad Iqbal but since without first deciding the issue of maintainability the petition cannot be adjudicated on merits therefore we will take this matter first.

22. As stated earlier in C.P. No.2330 of 2008 the letter impugned before us is the letter of respondent No.1 dated 2nd September, 2008 by which the exemption/concession on import of prefabricated buildings was refused whereas the letter impugned in Constitutional Petition No. 308 of 2009 is the letter dated 23-1-2009 sent by respondent No.2 written to the Second Secretary of respondent No.4 by which the respondent No.4 was informed that the respondent No.2 is of the view that exemption under Serial No.21 of the S.R.O. 575(I)/2006 dated 5-6-2006 is not available in respect of prefabricated buildings imported by the present petitioner. A perusal of section 193 of the Customs Act and section 195 of the Customs Act reveals that none of the above letters by which the exemption was disallowed, fall under the categories of orders/decisions appealable before the Collector (Appeals) or appealable before the Appellate Tribunal. In the comments filed by the respondents in C.P. No.2330 of .2008 in para. 23 it has been submitted that the petitioners have approached the Court without exhausting the remedies of appeal which have been provided to them under sections 193, 194(A) and 196 of the Customs Act but it has not been clarified as to how these remedies are available.

23. The same objection has been taken in the comments filed in C.P. No.2330 of 2008 whereas in the Petition No.308 of 2009 the maintainability has been challenged being filed in utter violation of the petitioner's undertaking dated 9-6-2006 whereby he had undertaken that if the C.B.R's clarification in respect of S.R.O. 575(I)/2006, dated 5-6-2006 is against him the postdated cheques may be encashed. The learned counsel Mr. Mohsin Imam and Mr. Raja Muhammad Iqbal have relied on the following judgments in support of their contention that the petitions are not maintainable:--

(1) The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others (1999 PTD 2174)

(2) M.A. Kareem Iqbal v. Presiding Officer, Banking Court No.III and 4 others (2003 CLD 1447)

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

(4) Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549)

(5) Noor Elahi and others v. Members, Board of Revenue and others (2003 SCMR 1045)

(6) Khalid Mahmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881)

24. Whereas Mr. Khalid Jawaid Khan the learned counsel for the petitioner in support of his contention that the petition is maintainable relied on the following judgment of the Honourable Supreme Court in the case of Messrs Gut Ahmed Textile Mills v. Collector of Customs (Appraisement), Custom House, Karachi and 2 others (1990 MLD 126) and The Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279 = 2009 PTD 1392).

25. Before discussing these-judgments we would like to reiterate that it has not been clarified to us as to how the remedy of appeal under sections 193 and 194-A before the Collector of Customs (Appeals) and the Customs Appellate Tribunal are available to the petitioner in respect of the orders passed by the Federal Board of Revenue or by the Collectorate of Customs as they do not fall within the categories of the orders and decisions which are appealable before the Collector of Customs (Appeals) under section 193 of the Act or under 194-A of the Act as we had already expressed our view that these orders do not fall in category of the appealable orders. We have however still decided to examine the judgments relied on by the learned counsel for the respondents.

26. In the case of Sheikh Spinning Mills (quoted supra) the Honourable Supreme Court while setting aside a judgment of the Lahore High Court held that the learned Judge of the Lahore High Court was not justified in granting a general clarification in respect of Notification in absence of any specific instance of denial by the Department to the respondents to reclaim or deduct the input tax paid and therefore the Honourable Supreme Court held that it would have been appropriate to have' asked the respondents to approach the forum provided under the Act by providing guidelines. This case is distinguishable as in the petition before us the petitioner has approached the relevant authority for seeking clarification and exemption but in the first petition the Federal c Board of Revenue itself and in the second petition the Collectorate of Customs under intimation to the Federal Board of Revenue had refused the exemption and therefore in our view the petitioners did not have any other remedy available to them.

27. In the case of M.A. Kareem Iqbal quoted supra the Honourable Supreme Court observed that provisions of section 22(3) of the Ordinance of 2001 were not as stringent and harsh as were those in the earlier statutes relating to recovery of loans/advances of financial institutions therefore it cannot be said that pre-condition of furnishing of security, for which a reasoned order will have to be made by High Court in its capacity as Appellate Authority, would automatically render remedy of appeal as nugatory, inefficacious and inadequate. The Court was also of the opinion that where a statute provided a self-contained machinery for determination of questions arising under the statute and it also provides remedy by way of appeal or revision to another Tribunal or Court fully competent to give any relief, then the High Courts should not show indulgence by accepting constitutional petitions assailing the impugned orders passed by the Tribunal or Court in contravention of the provisions made in the statute. This case is also distinguishable as in this case no remedy is provided against the orders of rejection passed what to say of the remedy being imaginary, inadequate or being subjected to arbitrary condition.

28. In the case of Khalid Mahmood quoted supra it was held that where alternate remedies are available or where this Court is itself repository of ultimate appellate, revisional or referral powers, conferred by relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a' constitutional petition and to enforce the constitutional remedy. This case is also distinguishable as neither it has been pointed out to us as to how the remedies are available nor it has been claimed that the ultimate appeal/reference will lie to this Court.

29. In the case of Noor Elahi quoted supra the facts were that the matter relating to title and possession of land had finally been settled by the judgment of the Honourable Supreme Court and the petitioners through constitutional petition had sought demarcation of land with the intervention of the High Court to avoid any threat to their title and possession without raising any objection to the settlement and the petitioners had conceded that matter relating to the demarcation of land was never in issue before the High Court or Board of Revenue at any stage and the constitutional petition was filed for the reason that revenue authorities would not be prepared to accept petitioner's demand of demarcation of land without the intervention of the Court. The Honourable Supreme Court in such circumstances held that the High Court could not proceed in the matter in conflict to the judgment of the Supreme Court and permit reopening of the past and closed transactions and further held that interference of the High Court in the matter would amount to allowing use of remedy of constitutional petition as mischief against the state functionaries to compel them to act and proceed against the mandate of law.

30. On the basis of facts narrated above it is prima facie clear that this judgment has no nexus with the present case.

31. In the case of Universal Gateway Trading Corporation quoted supra the Honourable Supreme Court held that where alternate efficacious remedy were available under sections 179, 193, 194-A and 196 of Customs Act, 1969, which could have conveniently been availed by the importers in the hierarchy of customs laws, jurisdiction conferred upon such forums could not be exercised by the High Court under the garb of Article 199 of the Constitution. On the basis of what has' been stated above this judgment is also distinguishable.

32. We would like to observe without perusing the judgments relied on by the learned counsel for the petitioner that the constitutional remedy is a remedy which the Court in its discretion decides to exercise from case to case based on the facts and circumstances of each case and in these petitions we are of the opinion that an important question of interpretation is involved as to whether the prefabricated buildings and structures will or will not fall within the definition and meaning of plant, machinery and capital goods for the purposes of exemption under Serial No.21 of the table of S.R.O. 575(I)/2006 dated 5-6-2006 and we are satisfied that no remedy is available by which the controversy in these F petitions can be resolved. We are therefore of the considered view that these petitions are maintainable and are not covered by any of the judgments relied on by the learned counsel for the respondent and are fully covered under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 therefore the contention of the respondents on the maintainability of the petition are repelled.

33. We will now examine the merits of the case. As argued by the learned counsel for the petitioner the points for consideration in petition No.2330 of 2008. are (i) whether the prefabricated buildings imported by the petitioners falls within the definition of plant, machinery and capital goods for the purposes of exemption under Serial No.21 of the table attached to S.R.O. No.575(I)/2006 dated 5-6-2006 (2) whether the exemption is barred due to the fact that the goods imported by the petitioner are also manufactured locally (3) whether the goods of the petitioner are exempted under S.R.O. 575(I)/2006 dated 5-6-2006 read with S.R.O. 554(I)/2008 dated 11-6-2008 and S.R.O. 1126(I)/2008 dated 27-11-2008.

34. In the Petition No.308 of 2009 only the first issue is relevant as it has not been alleged ether in the letter refusing the exemption or in the comments that the goods imported by the petitioner are being manufactured locally.

35. We have very minutely perused the contents of S.R.O. 575(I)/2006 dated 5-6-2006, S.R.O. No.554(I)/2008 dated 11-6-2008 and S.R.O. S:R.0.1126(I)/2008 so that we may be able to give finding on the above issues. Before we resort to such examination it will be relevant to reproduce the preamble of Notification S.R.O. 575(I)/2006 and the conditions attached including the explanation giving the definition of capital goods and the exemption/concession available at Serial No.21 and Serial No.34 of the table annexed to this Notification.

"Notification No.S.R.O. 575(I)/2006, dated 5th June, 2006.---In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969), and clause (a) of subsection (2) of section 13 of the Sales Tax Act, 1990, and in suppercession of its Notification NO. S.R.O. 575(I)/2005, dated the 6th June, 2005, the Federal Government is pleased to exempt plant, machinery, equipment and apparatus, including capital goods, specified in column (2) of the Table below, falling under the HS Codes specified in column (3) of that Table, from so much of the customs-duty, specified in the First Schedule to the said Act, as is in excess of the rates specified in column (4) thereof, and the whole of Sales Tax leviable under the Sales Tax Act, 1990, subject to the following conditions, besides the conditions specified in column (5) of the Table, namely:-

(i)the imported goods are not listed in the locally manufactured items, as notified through a Customs General Order issued by the Central Board of Revenue from time to time or, as the case may be, certified as such by the Engineering Development Board. This condition shall, however, not be applicable in respect of Serials Nos.6, 15, 20, 27, 28 and 30 of the Table;

(ii)except for Serials Nos.1, 8, 16, 18, 22 and 27 of the Table, the Chief Executive, or the person next in hierarchy duly authorized by the Chief Executive or Head of the importing company shall 5ertify in the prescribed manner and format as per Annex-A that the imported items are the company's bona fide requirement. He shall furnish all relevant information Online to Pakistan Customs Computerized System (PACCS) against a specific under ID and password obtained under section 155D of the Customs Act, 1969. In already computerized Collectorates or Customs stations where the PACCS is not operational, the Project Director or any other person authorized by the Collector in this behalf shall enter the requisite information in the PACCS on daily basis, whereas entry of the data obtained from the customs stations which have not yet been computerized shall be made on weekly basis; and

(iii)in case of partial shipments of machinery and equipment for setting up a plant, the importer shall, at the time of arrival of first partial shipment, furnish complete details of the machinery, equipment and components required for the complete plant, duly t supported by the contract, lay out plan and drawings.

Explanation.---Capital Goods mean any Plant, Machinery, Equipment, spares and accessories, classified in Chapters 84, 85 or any other chapter of the Pakistan Customs Tariff, required for

(a)the manufacture or production of any goods, and includes refractory bricks and materials required for setting up a furnace, catalysts, machine tools, packaging machinery and equipment, refrigeration equipment, power generating sets and equipment instruments for testing, research and development, quality control, pollution control and the like,

(b)use in mining, agriculture, fisheries, animal husbandry, floriculture, horticulture, livestock, dairy and poultry industry; or

(c)service sectors listed at Serial No. 16 of the Table below, and includes the items mentioned in clause (a) above."

36. From a perusal of the preamble of the S.R.O. it is seen that the Notification has been issued to convey the decision of the Federal Government to exempt plant, machinery, equipment and apparatus including capital goods specified in column (2) of the Table falling under HS Codes specified in column (3) of the Table subject to the conditions listed. The explanation in which capital goods have been defined has restricted its meaning to plant, machinery, equipment, spares and accessories in three sectors, Serial No.21 provides concession and exemption to machinery, equipment and other capital goods imported by an industrial undertaking under respective HS Codes and the condition is that such exemption is available if they are imported for setting up any industry whereas Serial No.34 provides exemption to prefabricated buildings and sheds and the condition for the applicability of exemption/ concession is that such prefabricated buildings and sheds are imported by certain specified sectors. A plain reading of this serial may lead to the conclusion that the exemption in respect of prefabricated buildings and sheds are only available to such prefabricated buildings and sheds which are imported by the medical sector, hotel, and tourism and industries and wholesale and retail stores. However, we are of the opinion that the entire S.R.O. has to be read as a whole to arrive at the intent of the authority. A perusal of the table reveals that Column No.2 of the table describes the items to which the exemption/concession is being provided and in Serial No.34 in Column No.2 prefabricated buildings and sheds have been mentioned We now go back to the preamble where it has been provided that the exemption is in respect of plant, machinery and equipment and apparatus including capital goods specified in column (2) of the table below. The immediate interpretation which can be made of this preamble is that any item/goods specified in column (2) of the table will either be a plant, machinery, equipment or apparatus or capital goods and therefore the natural conclusion is that since prefabricated buildings and sheds have been specified in column (2), therefore, they fall either in the definition of plant, machinery equipment and apparatus or capital goods and their import therefore, subject to other conditions, will be entitled to exemption/concession under other serial numbers also despite the fact that in column (5) the condition attached .is that the exemption and concession will be available only if they are imported by the three sectors mentioned above. Despite arriving at this conclusion we have reviewed the judgments relied on by the learned counsel for the petitioners and have seen that in almost all of them plant and machinery and capital goods have been exhaustively defined. We will now discuss these judgments briefly one by one.

37. In the case of D.G. Khan Cement Company (quoted supra) this Court has reproduced with approval the following definition of plant highlighted by the learned counsel for the petitioner:-

"Plant.---A broad and liberally applied term of such variable meaning that in order to be properly understood the subject matter to which it relates must be known.

As a noun. In its primary signification the word 'plant' relates to growth of a vegetable character, and there is involved in it the idea, not only of attachment to the soil, but of some degree of permanency. In this sense the word 'plant' is defined as meaning a slip, cutting, or sapling; a, young tree, shrub, or herb, planted or ready to plant.

Within comparatively recent years the language has been enriched by a new use of the old word 'Plant', and in its newer usage the terms means an operating unit, and refers to organized physical equipment which will produce a desired result. When the word is used in this sense with reference to manufacturing, mercantile, or industrial establishments, it has a wider significance than when it is used in its primary sense.

As used with reference to manufacturing, mercantile, or industrial establishments, the word 'plant' is defined as meaning the whole machinery and apparatus employed in carrying on a trade or mechanical business; property owned or used in carrying on some trade or business, the fixtures, machinery, tools, apparatus, appliances, etc. necessary to carry on any trade or mechanical business, or any mechanical operation or process; the machinery, apparatus, fixtures, etc, employed in carrying on a trade or a mechanical or other industrial business, as an electric light plant, a fishing plant, etc. the tools, machinery, apparatus, and fixtures as used in a particular business, that which is necessary to the conduct of any trade or mechanical business often including the building business or undertaking a set of machines, tools, etc., necessary to conduct a mechanical and grounds, or in case of a railroad, the rolling stock, but not including material or product; everything other than supplies and stock-in-trade necessary and requisite to the carrying on of a business; whether apparatus is used by a businessman for carrying on his business, not his stock-in-trade which he buys or makes for sale, but all goods and chattels, fixed and movable, live or dead, which he keeps for permanent equipment in his business, a workshop or other apparatus complete, as a bicycle plant.

The word 'plant' is an all-embracing terms, and it may include real estate. It is expressive of. land and buildings, but, subject to the qualification that, while ground occupied by a factory or mill, or even that' part adjoining a factory and used for office or warehouses, may be treated as part of the plant, a large tract of land many miles from the plant proper which is used for raising raw material for the factory ordinarily will not be considered a part of the plant. A plant is not merely the place of business, but the means of carrying it on, and the term includes everything that represents capital invested in the means of carrying on a business, and it is applied to the manufacturing premises equipped with machinery and appliances required for the carrying on of the business there conducted, including the apparatus required to carry on any manufacturing operation, and no special form of machinery or appliance is necessary to constitute a plant. The terms ordinarily is not applied to the raw material or the manufactured product, and does not include the supplies' and stock-in-trade necessary to the carrying on of a business.

A `plant' is an entity wholly distinct from the land, buildings, machinery, and appliance which compose it, and it has a much greater value in its entirely than the aggregate value of the land with buildings and the equipment of sold separately.

While the word 'plant' is defined in a large number of cases where many forms of business and manufacturing are covered, and although it is in many instances applied to manufacturing, mercantile, or industrial establishments, it is not always so restricted, and by extension, the word `plant' may also mean the equipment of any institution, as the plant of a college; the permanent appliances needed for any institution, as a post office, and in the terminology employed in the field of outdoor advertising. A 'plant' means a group of sign locations owned or controlled by one bill poster in once city or community."

38. In the case of 19 Queens Bench, the Court has gone as far as holding that a horse is a machinery.

39. In the case of Fauji Fertilizer Co. Ltd. (quoted supra) the Honourable Supreme Court held as under:

"Plant and machinery" are not two different entities, because a plant cannot be functional without machinery and machinery being integral part of the plant, both "plant and machinery" can be considered interchangeable and synonymous keeping in view a little difference between the two and their dependence upon each other because they are not separable and a plant cannot be made functional without a machine."

40. In the case of Moro Textile Mills Limited (quoted supra) this Court after examining the meaning of the words "machine" and "machinery" came to the same conclusion and held that Fibre Cans and Roving Bobbins not only fall within the definition of machinery but also are covered under the component parts of machinery.

41. In the case of Scientific Engineering House (quoted supra) the Indian Supreme Court held that documents received in the shape of drawings, designs, charts, plans, processing data and other literature would constitute books and fall, within the definition of the term "plant".

42. From a perusal of the above cases specially from the extract of the judgment in the case of D.G. Khan Cement (quoted supra) it is seen that the word "plant" even encompasses real estate and includes lands and buildings only subject to the qualification that while ground occupied by a factory or mill, or even that part adjoining a factory and used for office or warehouses, may be treated as part of the plant but a large tract of land many miles from the plant proper which is used for raising raw material for the factory ordinarily will not be-considered a part of the plant.

43. From the above discussion about the interpretation of Serials Nos.21 and 34 of the S.R.O. 575(I)/2006 and the relevant extracts from the judgments relied on by the learned counsel there is no doubt left in our minds that the prefabricated factory buildings and sheds imported by the petitioners fall within the definition of plant, equipment, machinery and capital goods and therefore qualify for exemption/concession prescribed under S.R.O. 575(I)/2006 dated 5-6-2006.

44. However, the question which now arises is that if the prefabricated buildings and sheds imported by the petitioner fall within the definition of plant, equipment, machinery and capital goods then why has the condition been specified in Column No.5 at Serial No.34 of the S.R.O. 575(I)/2006 that it will only be available to prefabricated buildings and sheds if imported by sectors specified at Serials Nos.7, 8 and 17 which relate to hospitals and medical or diagnostic institutes; hotels (three stars and above), tourism, sporting and other recreation services related projects as approved by the Ministry of Tourism; and goods imported for establishing wholesales/retail chain stores. A perusal of Serial No.7 and Serial No.17 leads to the conclusion that since in iv those sectors the machineries which qualify for exemption have been specifically mentioned and the exemption/concession has been allowed to the mentioned machineries only and since at Serials Nos.7 and 17 the prefabricated buildings and sheds were not mentioned, therefore, for prefabricated buildings to qualify for exemption/concession in these sectors it was necessary either to include them in the list of machinery in that serial itself or mention them in serial 34 that they will be exempt/entitled to concession if imported by sectors specified in serial Nos.7 and 17. A perusal of Serial No.8 also reveals that in Serial No.8 it is seen that stringent condition has been provided in Column No.5 at Serial No.8. Therefore, we are of the opinion that if prefabricated buildings are imported by sectors specified in Serial No.8 then condition specified in column 5 at Serial No.8 will not be available as no such condition has been specified in Serial No.34 and such machinery will qualify for exemption/concession even if condition specified in column 5 at Serial No.8 has not been followed but the other prescribed conditions have been fulfilled. We are therefore of the considered opinion that the prefabricated buildings and sheds are integral part and fall within the definition of plant, equipment, machinery and capital goods as specified in Serial No.21 of the S.R.O. 575(I)/2006 dated 5-6-2006 and therefore the contention of the respondents in both these petitions that the prefabricated buildings and sheds do not fall within the definition of machinery and capital goods cannot be sustained.

45. Since in C.P. No.D-308 of 2009 the only reason for disallowing the exemption/concession under S.R.O. 575(I)/2006 dated 5-6-2006 was that the prefabricated building did not constitute plant, machinery, equipment and capital goods as envisaged in Serial No.21 of S.R.O. 575(I)/2006 dated 5-6-2006 and therefore did not qualify for exemption under the said S.R.O., in view of our above opinion the petition is allowed and it is held that the consignment of pre-engineered/ prefabricated steel structure employing crane system equipped with top running crane system being integral component of industrial plants falls within the definition of plant, equipment, machinery and capital goods as envisaged in Serial No.21 and is therefore entitled to' exemption/ concession provided in Serial No.21 of the above Notification. The respondents are therefore directed to provide such exemption/concession to the petitioner and return their postdated cheques.

46. In C.P. No.D-2330 of 2008 although such an allegation had not been made in the letter refusing the exemption/concession but in the comments filed by the department it has been claimed that the goods which have been imported by the petitioner can be manufactured locally and therefore the petitioner does not fulfil the condition No.(i) which requires that the imported goods be not listed in the locally manufactured items although no list or CGO has been filed along with comments and this contention was specifically denied by the petitioner in their affidavit in rejoinder to the counter affidavit filed and no reply was received from the respondent in reply to this rejoinder but since the petitioners have also claimed exemption under S.R.O. 554(I)/2008 dated 11-6-2008 and S.R.O. 1226(I)/2008 dated 27-11-2008 and since we are of the considered opinion that the petitioner's case falls squarely within the ambit of those two- Notifications therefore we are refraining from giving any finding on the point as to whether the goods imported by the petitioner can actually be manufactured locally or not.

47. We now take up the petitioner's claim that they fall squarely within the ambit of Notification 554(I)/2008 dated 11-6-2008 read with Notification 1226(I)/2008 dated 27-11-2008 which provide that the condition that the imported goods being not manufactured locally, will not apply for such machinery, equipment and other capital goods imported as plant for setting up of a new industrial units provided the import is made against a valid contract or an irrevocable Letter of Credit for a minimum C & F value of US $ 50 million or above. The petitioner's counsel has submitted that his total imports for which LCs were opened in the third week of March, 2008 and the goods reached the port somewhere in November, 2008 exceeded US $ 50.00 million and therefore qualified for exemption/concession. On this ground also he has provided a complete statement of such imports which shows that in respect of LCs established up to December, 2008 he has imported goods worth US $ 59,916,806.85. In this statement supervisory services have been shown at US $ 2,211,314.81 whereas prefabricated buildings have been shown at US $ 2,545,814.00. Even if supervisory services are subtracted from the total value of the L.C. the value of the LCs including the prefabricated buildings will still be more than US $ 50.00 million and will therefore qualify for exemption/concession under the above mentioned S.R.Os and the condition of such goods being mentioned in the list of locally manufactured goods will not apply in such a case.

48. The respondents had feebly tried to argue that the provisions of the S.R.O. 554(I)/2008 dated 11-6-2008 and S.R.O. 1226(I)/2008 dated 27-11-2008 will not apply to the present petitioners as LCs were issued and the contracts executed in March, 2008 before coming in force of these S.R.Os and these S.R.Os cannot be applied retrospectively. This contention is repelled as when the goods arrived and were cleared these S.R.Os have already been put into operation and therefore in accordance with the provisions of the Customs Act the duty prevailing at the time of filing bill of entry will apply. Even otherwise, these S.R.Os are of beneficial nature and it is a settled law that all beneficial circulars and notifications apply retrospectively to all pending matters.

49. We are therefore of the considered opinion that the petitioner qualifies for exemption/concession provided in Serial No.21 of S.R.O.575(I)/2006 dated 5-6-2006 read with the S.R.O. 554(I)/2008 dated 11-6-2006 and S.R.O. 1226(I)/2008 dated 27-11-2008 and therefore the impugned letter rejecting such exemption/concession is quashed and the respondents are directed to provide exemption/concession as may be available to the petitioners on the imports of prefabricated buildings under serial No.21 of S. R.0.575(I)/2006 dated 5-6-2006.

50. These petitions are disposed of in the above manner.

S.A.K./A-123/KPetition accepted.