ALAMDAR ENGINEERING (PVT.) LTD. VS FEDERATION OF PAKISTAN through Secretary Finance, Government of Pakistan, Islamabad, 2012 PTD-LAHORE-HIGH-COURT-LAHORE 1758 (2012)

Constitution of Pakistan---

----Art.199---S.R.O. 989(I)/1997 dated 15-10-1997---S.R.O.(I)/1998 dated 1-7-1998---Constitutional petition---Central Board of Revenue (CBR) notification and adjudication order of Collector of Customs---Vires of notification and adjudication order was challenged by constitutional petition before the (Lahore) High Court---Maintain-ability---Territorial jurisdiction of (Sindh) High Court---Scope---Importer (petitioner) availed exemption under S.R.O. 989(I)/1997 dated 15-10-1997 (first S.R.O.) from levy of customs duty and sales tax on machinery and equipment imported---Collector of Customs (respondent) cleared the imported consignments, but unknown to him S.R.O. 989(I)/1997 (first S.R.O.) had been rescinded with immediate effect vide S.R.O.(I)/1998 dated 1-7-1998 (second S.R.O.)---Consequently Collector of Customs sent demand notice to the importer on account of duty and tax payable as the exemption availed had actually been recalled---Said demand notice subsequently merged into an order in original, which was challenged in the present constitutional petition before (Lahore) High Court-----Collector of Customs and Central Board of Revenue (respondents) raised the contentions that present constitutional petition was not maintainable to challenge the adjudication order in original before (Lahore) High Court for lack of territorial jurisdiction; that Collector of Customs was a statutory officer performing functions at Karachi which was beyond the territorial jurisdiction of Lahore High Court---Importer contended that present constitutional petition was maintainable on the ground that Collector of Customs operated throughout Pakistan and was amenable to the jurisdiction of Lahore High Court, and that where a notification/policy decision of the Central Board of Revenue was also challenged along with an adjudication order passed beyond the territorial jurisdiction of the court then a constitutional petition was maintainable before the Lahore High Court---Validity---Where the vires of a notification by Central Board of Revenue was challenged along with an adjudication order,suchachallengetoadjudicationorderwasmaintainableonly before the High Court within the territorial jurisdiction of which court, such order had been passed---Such a rule was conditional and dependent upon whether or not an adjudication order had been challenged---S.R.O.(I)/1998 dated 1-7-1998 (second S.R.O.) had fructified into an adjudication order passed by Collector of Customs, who fell solely within the territorial jurisdiction of Sindh High Court---Importer could not receive any effective relief without disputing said adjudication order, therefore, present case was a case wherein a challenge to the adjudication order in original was maintainable before the Sindh High Court---Constitutional petition was dismissed accordingly.

Ahmad Abdullah Dogar for Petitioner.

Ch. Muhammad Zafar Iqbal for Respondents.

ORDER

UMAR ATA BANDIAL, J.---The petitioner availed exemption under S.R.O. 989(I)/1997 dated 15-10-1997 ("S.R.O.") from levy of customs duty and sales tax on machinery and equipment imported by the petitioner for Neelum Valley Hydro Electric Project. Three consignments of the said equipment and machinery were cleared by the respondent No. 3CollectorofCustoms,Karachion22-10-1998,on14-11-1998 and on 1-1-1999 by granting the petitioner benefit of exemption under the aforenoted S.R.O. Unknown at the time to the said respondent, vide notification bearing S.R.O. (I)/1998 dated 1-7-1998 the aforenoted S.R.O. 989(I)/1997 dated 15-10-1997was rescinded with immediate effect. Consequently, upon learning of the said rescission, the respondent No.3 vide impugned demand notice dated 3-6-1999 raised a demand of Rs.7.048 million against the petitioner on account of dutyandtaxpayableontheaforenotedthreedulyclearedconsignmentsfor the reason that the exemptionavailedhad actually been recalled on 1-7-1998. The said demand notice dated 3-6-1999 was challenged in this writ petition filed in the year 2000. Subsequently, the impugned demand notice has merged into an Order-in-Original No.34 of 2001 dated 23-2-2001 which is also challenged by the petitioner in this petition.

2.Learned counsel for the respondents Nos.2 and 3 has raised the objection that this petition is not maintainable to challenge the adjudication Order-in-Original No.34 of 2001 before this Court for lack of territorial jurisdiction. The respondent No.3 is a statutory officer performing functions at Karachi which is beyond the territorial jurisdiction of this Court. He relies on the judgment of the Hon'ble Supreme Court given in Mst. Shahida Mapsood v. President of Pakistan (2005 SCMR 1746.)

3.Learned counsel for the petitioner on the other hand defends the maintainability of this petition firstly on the ground that respondent No.3 functions throughout Pakistan and relies on Trading Corporation of Pakistan v. Pakistan Agro Forestry Corporation (2000 SCMR 1703) to fortify his submission that the said respondent is amenable to the jurisdiction of this Court. Secondly and more importantly he relies on Sandalbar Enterprises (Pvt.) Ltd. v.Central Board of Revenue and others (PLD 1997 SC 334) to urge that in a case where the notification/ policy decision of the CBR respondent No.2 is also challenged along with an adjudication order passed beyond the territorial jurisdiction of the Court then a writ petition is maintainable before the Lahore High Court, Rawalpindi Bench.

4.The first ground of defence taken by learned counsel for the petitioner is not available because the respondent No.3 performs functions in an area that fall solely within the territorial jurisdiction of the learned Sindh High Court. Accordingly, the analogy of the respondent No.3 with the Trading Corporation of Pakistan that has office all over Pakistan is inapt. The second line of defence is, however, relevant if the challenge in a petition is confined to the vires of an order passed by the CBR. Infact according to the said precedent when the vires of a notification by the C.B.R. is challenged along with an adjudication order such challenge to the adjudication order is maintainable only before the learned High Court within the territorial jurisdiction of which Court, such order has been passed. Accordingly, the rule laid down in the aforenoted precedent is conditional and dependent upon whether or not an adjudication order has been challenged.

5.In the present case, the impugned S.R.O. (I)/98 dated 1-7-1998 has fructified into an adjudication order dated 23-2-2001 passed by respondent No.3 who falls solely within the territorial jurisdiction of the learned Sindh High Court. Without disputing the adjudication order the petitioner cannot receive any effective relief. Therefore, on the basis of the precedent relied by learned counsel for the petitioner this is a case wherein a challenge to the adjudication Order-in-Original No.34 of 2001 dated 23-2-2001 is maintainable before the learned Sindh High Court.

6.Learned counsel contends that the controversy raised in the petition is still a live issue for the reason that the tax demand of Rs.7.048 milliondeterminedtobepayablevidetheadjudicationorderdated23-2-2001 has not yet been discharged by the petitioner.

7.The petitioner may, if so inclined, avail his remedy before the competent court. Petition dismissed.

ORDER

C.M. No.1749 of 2010

Hearing has been granted to the learned counsel for the petitioner in pursuance of the order of this Court dated 30-4-2012.

2.Learned counsel has read from judgment in the Flying Kraft's case (1997 SCMR 1874). That case pertains to a belated challenge by the respondent tax authorities to the jurisdiction of the Rawalpindi Bench. Moreover, it does not contain a challenge by the importer petitioner to an adjudication order passed by an authority beyond the territorial jurisdiction of the Bench in question. Consequently, the facts of that case are distinguishable from the present case.

3.In this case the objection to the jurisdiction of this Court has been taken at the outset and secondly, learnedcounselforthepetitioner has expressly prayed for relief against adjudication order dated 23-2-2001 passed by respondents at Karachi.

4.Accordingly, no change in the opinion expressed by this court on 30-4-2012 is called for. In view of the said position the judgment in the case dictated in open court on 30-4-2012 is finalized and signed. C.M. dismissed.

MWA/A-135/LPetition dismissed.