AL AMNA INTERNATIONAL VS FEDERATION OF PAKISTAN through Secretary/ Chairman, Federal Board of Revenue, 2014 PTD-KARACHI-HIGH-COURT-SINDH 370 (2013)

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate statutory remedy against impugned order, availability of---Effect---Constitutional petition in such situation would not be maintainable---Principles.

Article 199 of the Constitution reveals that it is an extraordinary jurisdiction, which can be availed only when no alternate remedy is provided under the law. By this time it is the established legal position that constitutional petition is not maintainable in presence of statutory remedy provided under the relevant law. To invoke the constitutional jurisdiction, condition precedent is non-availability of equally efficacious alternate remedy.

(b) Sales Tax Act (VII of 1990)---

----Sixth Sched. Table-1, Sr. No. 15---Customs Act (IV of 1969), Ss.33, 79, 80, 179 & 193---Constitution of Pakistan, Art. 199 --Constitutional petition---Tinned/bottled or canned fruits, import of---Importer got such goods released without payment of sales tax by wrongly claiming exemption under Sr. No. 15 of Table-I to Sixth Sched., of Sales Tax Act, 1990---Issuance of contravention report to importer for initiating against him adjudication process---Validity---Non-availability of equally efficacious alternate remedy would be condition precedent for invoking constitutional jurisdiction---Petitioner could challenge such action of customs authorities in appeal before Appellate Authority under S. 193 of Customs Act, 1969, but he had neither availed such remedy nor offered anyjustification therefor---Exemption of sales tax under Column No.(2) of Sr. No.15 of Table-1 of Sixth Sched., of Sales Tax Act, 1990wouldbeavailabletoediblefruitsexcludingimportedfruits with exception of fruits imported from Afghanistan either fresh, frozen or preserved---No such exemption would be available to tinned/bottled or canned fruits---High Court dismissed constitutional petition for being not maintainable in circumstances.

Ziaul Hassan for Petitioner.

S. Mohsin Imam Wasti D.A.G. for Respondent.

Zain A. Jatoi for Respondents Nos.2 and 3.

Kashif Nazeer for Respondents Nos. 4 and 5.

Saud Hassan Khan, I.O.

ORDER

MRS ASHRAF JEHAN, J.---By the single order we intend to dispose of all the four petitions as they arise out of similar facts and involve identical legal issues.

2.It is the case of the petitioners that they are regular Importers and Distributors of "Tinned/bottled or canned fruits" (hereinafter referred to as subject consignments) and imported various consignments of the above product, which were released by the Customs Authorities by allowing the entitled exemption of Sales Tax in terms of Serial No.15 of the Sixth Schedule of Sales Tax Act, 1990. As per petitioners the subject consignments were assessed and released by the Customs Department without any hitch or hindrance, but subsequently upon receiving complaint from the ex-President of Chamber of Commerce and Industries, (who are also the Importers of said product but failed to claim the exemption due to their negligence), the respondent No. 2 did not allow the release of subject consignments of the petitioners. The contravention reports dated 18-3-2013 were issued against all the petitioners by the Directorate General of Intelligence and Investigation F.B.R. and forwarded to Collector (adjudication II) Customs for initiating adjudication process, which are impugned before this Court. As per petitioners the benefit of exemption in terms of Sixth Schedule of the Sales Tax Act, 1990 was denied by mis-interpreting S. No. 15 of the said Schedule, which has necessitated the filing of these petitions. It has been prayed that the subject consignments may be declared entitled for exemption from the Sales Tax in terms of S. No. 15 of Table 1 of Sixth Schedule of Sales Tax Act, 1990 and to set aside the impugned contravention reports dated 18-3-2013.

3.The respondents have filed their parawise comments refuting the case of the petitioners. As per the comments on behalf of respondents Nos. 2 and 3 the petitioners have evaded leviable Sales Tax and consequential Withholding Tax on import of impugned consignments of "canned fruits" of PCT heading 2008.9700 and 2008.2000 from Philippine, Thailand and Malaysia by wrongly claiming exemption under S. No. 15 and S. No. 61 of Table I to Sixth Schedule of Sales Tax Act, 1990, which was not admissible to the said goods. Therefore, the petitioners are not entitled for equitable relief. Further, it is the case of the respondents that the subject commodities are chargeable to the standard rate of Customs duty @ 30%, Sales Tax @ 16%, Additional Sales Tax (minimum Value Addition Tax) @ 3% and Advance Income Tax @ 5% at import stage. As such, no exemption of Sales Tax is available to the subject consignments, therefore, the petitions are liable to be dismissed.

4.The respondents Nos. 4 and 5 have also filed their comments and at the very outset raised the objection in respect of maintainability of these petitions and have stated that the subject petitions have been filed without exhausting the remedies available within the hierarchy of relevant statute i.e. Customs Act, 1969 (hereinafter referred to as 'Act') therefore, in terms of Article 199(1) of the Constitution of Islamic Republic of Pakistan read with section 218 of the Act, these petitions are not maintainable and liable to be dismissed in limine.

5.In addition to it these petitions have been filed with concealment of facts and on the basis of misstatement as the record shows that the petitioners and other importers have got cleared number of consignments of "Tinned/bottled or canned fruits" after payment of Sales Tax and despite availability of remedy of appeal under section 193 of the Act, no appeal has been preferred against those assessments. Therefore now they cannot claim exemption of Sales Tax in terms of S. No. 15 of Table-1 to Sixth Schedule. It is further disclosed that exemption of Sales Tax is applicable only to the locally produced fruits and not on the imported fruits except if imported from Afghanistan. The plain reading of the contents of Column No. (2) of Table-1 to the Sixth Schedule further clarifies that even the locally produced and Afghan imported canned and bottled fruits are chargeable to the Sales Tax. Thus under these circumstances petitions are liable to be dismissed.

6.We have heard the learned counsel for the parties. The points forconsideration before this Court are:--

(1)Whether these petitions are maintainable under the law, as the same have been filed without exhausting the remedies available within the hierarchy of Customs Act, 1969?

(2)Whether the subject goods i.e. "Tinned/bottled or canned fruits" are exempted from the Sales Tax as per S. No. 15, Table 1 under Sixth Schedule of the Sales Tax Act, 1990?

7.Admittedly, the present petitions are filed under Article 199 of the Constitution, the perusal of above Article reveals that it is an extraordinary jurisdiction, which can be availed only when no alternate remedy is provided under the law. By this time it is established legal position that Constitutional Petition is not maintainable in presence of statutory remedy provided under the relevant law. To invoke the constitutional jurisdiction condition precedent is non-availability of equally efficacious alternate remedy. In the case in hand the grievance of petitioners is that the Customs Authority have not correctly interpreted the entry No. 15 of the Sixth Schedule of the Sales Tax Act, 1990 and in this way illegally deprived them from the exemption provided under the aforementioned provisions of Sales Tax Act. The matter came in the knowledge of Customs Authorities when complaint was made by the ex-President of Chamber of Commerce and Industries to the effect that some imports of canned pineapple, mix fruit and sweet corn illegally got cleared their consignments by claiming exemption at import stage. The petitioners were, thereafter issued contravention reports dated 18-3-2013 for such violation but they instead of challenging it before the hierarchy of Customs Authorities have straight away challenged the same under Article 199 of the Constitution.

8.The perusal of Act provides that it has a complete mechanism as provided under Chapter XIX of the Act whereby any person including an officer of Customs, aggrieved by any decision or order passed under sections 33, 79, 80 and 179 by an officer of Customs can prefer appeal to the Collector appeals. However, in the instant case the petitioners have not availed such remedy provided under the law nor offered any justification for it.

9.To our understanding the arguments of the respondents in respect of non maintainability of these petitions have sufficient force as the present petitions have been filed without exhausting/availing the remedy of appeal provided under section 193 of the Customs Act, 1969. Hence under these circumstances the petitions are not maintainable.

10.The second issue relates to the correct interpretation of Sr. No. 15 of Table 1 to Sixth Schedule of Sales Tax Act, 1990, for ready reference same is hereby reproduced as under:-

11.The perusal of aforementioned provision reveals that its language is quite clear and unambiguous. However, by applying the principle of "Reading Down" the column No. (2) of Sr. No. 15 of Table 1 to Sixth Schedule of Sales Tax can be read as follows:-

"Edible fruits excluding imported fruits

Exemption is applicable only to local supply and not to imports

(except fruits imported from Afghanistan)

But imports from Afghanistan are exempted

Whether fresh, frozen or otherwise preserved

Exemption is applicable irrespective of preservation method

but excluding those bottled or canned

Both local supply and Afghan imports are not exempted if bottled or canned"

12.Thus it is clear that from all angles it can not be interpreted for allowing exemption to the subject consignments. The exemption of Sales Tax is only available to the edible fruits excluding imported fruits with exception of fruits imported from Afghanistan whether fresh, frozen or otherwise preserved, but excluding those bottled or canned of PCT headings referred hereinabove. As such, no exemption is available to Tinned/bottled or canned fruits. In view of above discussion it is established that neither the petitions are maintainable under the law, nor there is any exemption available for the subject consignments are per Sr. No.15 of Table 1 to Sixth Schedule of Sales Tax Act, 1990.

13.These are the reasons for short order dated 21-10-2013 whereby these petitions were dismissed along with listed applications.

SAK/A-144/KPetitions dismissed.