COLLECTOR OF CUSTOMS VS FATIMA ENTERPRISES LTD., 2012 PTD-SUPREME-COURT 516 (2011)

(On appeal from judgment dated 16-7-2003 of the High Court of Sindh, Karachi, passed in C.Ps. Nos. 350 and 351-D of 1995 and judgment dated 16-2-2006 passed in Spl. Customs Reference Application No.174 of 2005).

Customs Act (IV of1969)---

----Ss.80 & 193---Refund claim---Such claim was refused by the Authority, but accepted by High Court---Plea of Revenue was that demand raised under S.80 of Customs Act, 1969 was appealable under S.193 thereof against imposition of enhanced customs duty and that High Court could not set aside demand/order of Authority for payment of customs duty from petitioner, when alternate remedy was available to him---Validity---High Court while passing impugned judgment had encroached upon jurisdiction of Collector (Appeals)---High Court could not have decided such factual controversy---Supreme Court set aside impugned judgment of High Court in circumstances.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants.

Nemo for Respondent No.1

Maulvi Anwar-ul-Haq, Attorney General for Pakistan for Respondents Nos. 2 and 3

Shaiq Usmani, Sr. Advocate Supreme Court for Respondent No.4.

Date of hearing: 5th April, 2011.

JUDGMENT

AMIR HANI MUSLIM, J.---Through these appeals, the appellants have impugned the judgments of the learned High Court of Sindh, inter alia, on the ground that the learned High Court was in error in deciding the factual controversy raised in the petitions.

2.We may observe that Civil Appeals Nos.231 and 232 impugn the common judgment passed by the learned High Court in Civil Petitions Nos.350 and 351-D of 1995, whereas Civil Appeal No.949 impugns the judgment of the learned High Court in Special Customs Reference Application No.174 of 2005, by which the Reference filed by the Customs Department was dismissed in limine by the learned High Court relying upon the judgment of the learned Division Bench in Civil Petitions Nos.350 and 351-D of 1995.

3.Succinctly stated the facts in Civil Appeals Nos.231 and 232 of 2004 of the case are that the respondent No.1 placed an order for import of 1000.000 M/Tons RBD Palm Oil from Malaysia by opening different letters of credit. Out of consignment of 13,818.631, M/Tons, the share of respondent No.1 was 1979.949 M/tons. A total quantity of 13,717,720/ Tons of RBD Palm Oil was discharged from the vessel as against manifested quantity of 13,818,631 M/Tons thereby causing shortage of 104.911 M/Tons of RBS Palm Oil, which in terms of the share of the respondent No.1 came to 15.033 M/Tons. The respondent No.1 was denied delivery of 10% RBS Palm oil and the respondent No.1 claimed refund of customs duty amounting to Rs.1,29,284.00. The respondent No.1 filed two constitutional petitions before the learned High Court of Sindh, which were allowed which common judgment is impugned in Civil Appeals Nos.231 and 232 of 2004 whereas the Customs department filedaReferenceapplicationbeforethelearnedHighCourtinseparate proceedings which wasdismissedbythelearnedHighCourtof Sindh relying upon the common judgment passed in C.Ps.Nos.350and 351-D of 1995. Since common questionoflawisinvolvedinallthe three appeals, we intend to dispose them of by this common judgment.

4.There is no conflict of interest between the appellants and respondents Nos.2 to 4. Therefore the learned Attorney General for Pakistan representing the official respondents has addressed the Court and has contended that under the hierarchy of customs Act, an order or demand raised under section 80 of the Customs Act, 1969 (hereinafter referred to as the Act), is appealable before Collector (Appeals) under section 193 of the Act. He submitted that the respondent No.1, in the first instance, in law, was required to approach Collector (Appeals) against the imposition of enhanced customs duty on the palm oil. The respondent No.1 instead of approaching the Collector (Appeals) against the demand order passed by the customs authority under section 80 of the Act, has filed writ petition in the Sindh High Court.

5.The next contention of the learned Attorney General was that the order of demand of customs duty was based on factual controversy and the learned High Court was in error in assuming jurisdiction to reverse such finding of facts. He contended that the High Court in exercise of its writ jurisdiction have wrongly given finding on the issue of demand of customs duty on import of palm oil by the respondent No.1 from different places under the garb of long standing practice. He submitted that the issue of measurement of oil for the purpose of levying of customs duty etc. which is to be taken from the vessel and pumping of the oil to shore tank and theft or pilferage during such process were subject to customs duty and grievance of the respondent No.1 could have been addressed in appeal. The learned Attorney General contended that the law has provided the forum for determination of such factual controversy and the learned High Court in exercise of its writ jurisdiction cannot intervene to set at naught the demand and or order of customs officer for payment of customs duty from respondent No.1 when alternate remedy was available to the respondent No.1.

6.The contentions of the learned Attorney-General are not without force and we, after perusal of judgment impugned in these proceedings, are of the considered view that the learned Sindh High Court had encroached upon the jurisdiction of the Collector (Appeals) while passing the impugned judgment. Even otherwise, it was a factual controversy which the learned High Court could not have decided. We are in agreement with the contentions of the learned Attorney General for Pakistan. No one has appeared for the respondent No.1, who has been declared ex parte.

7.We, for the aforesaid reasons, allow these appeals and set aside the judgments of the learned High Court.

S.A.K./C-2/SCAppeals allowed.