The COLLECTOR, MODEL CUSTOMS COLLECTORATE VS NAVEENA INDUSTRIES LTD., 2017 PTD-KARACHI-HIGH-COURT-SINDH 2123 (2017)

2017 P T D 2123

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Nazar Akbar, JJ

The COLLECTOR, MODEL CUSTOMS COLLECTORATE and 2 others

Versus

Messrs NAVEENA INDUSTRIES LTD. and others

High Court Appeals Nos. 263 to 288, 304 to 306, 321, 322, 338, 339 of 2016, 82 to 85, 95 and 96 of 2015, decided on 03/08/2017.

(a) Sindh Civil Courts Ordinance (II of 1962)---

----S. 7 [as amended by Sindh Civil Courts (Amendment) Act (III of 2010)]--- Civil Procedure Code (V of 1908), S.9--- Suit before High Court--- Original Civil jurisdiction of High Court--- Scope--- Single Judge of High Court while trying a civil suit on its original side exercises same power as of a civil court as vested in District Judge in terms of S.7 of Sindh Civil Courts Ordinance, 1962--- Restrictions and qualification imposed in terms of S.9 of Civil Procedure Code, 1908, are equally applicable in respect of a suit before High Court.

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

----Ss. 80 & 217--- Goods declaration--- Civil suit--- Maintainability--- Principle--- When there is no mala fide on the part of Customs Authorities nor there is any jurisdictional defect in decision/orders passed under S.80 of Customs Act, 1969, there is no justification to abandon and by-pass statutory forums and no suit can be filed before High Court while exercising jurisdiction and powers of a civil court.

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

----Ss. 80, 193, 194, 194 & 217--- Sales Tax Act (VII of 1990), S.51--- Federal Excise Act (VII of 2005) S. 41---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.29--- Sindh Civil Courts Ordinance (II of 1962), S. 7 [as amended by Sindh Civil Courts (Amendment) Act (III of 2010)]--- Civil Procedure Code (V of 1908), S. 9--- Fiscal matter--- Civil suit--- Maintainability--- Taxpayers assailed orders passed by authorities, before High Court in original civil jurisdiction--- Single Judge of High Court allowed the civil suit and passed judgment and decree in favour of taxpayers--- Validity--- Legislative intent as manifested under various provisions of Customs Act, 1969, for the purposes of determination and assessment of duty and taxes, providing for specialized statutory forums of appeal and Reference to High Court on a point of law, which could be finally agitated and decided by Supreme Court under Art. 185 of the Constitution, as well as the express bar of civil suit provided in terms of S. 217 of Customs Act, 1969, read with S. 9, C.P.C. led to the only conclusion that any dispute in relation of determination and assessment liability of duty and taxes and the orders passed by Customs authorities under Customs Act, 1969, could not be made subject of a decision by a civil court established and constituted in terms of Sindh Civil Courts Ordinance, 1962--- Civil court constituted under Sindh Civil Courts Ordinance, 1962, as amended by Sindh Civil Courts (Amendment) Ordinance, 2002, did not confer any jurisdiction under the Constitution or any other law to entertain or decide a dispute relating to determination and assessment of duty and taxes under special taxation laws including Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001, Federal Excise Act, 2005 as well as under Sindh Sales Tax on Services Act, 2011, therefore, could not be termed as a civil court of ultimate jurisdiction for the purposes of deciding any controversy arising or relatable to the taxing statutes--- Assumption of jurisdiction by civil court including High Court, was without lawful authority--- Division Bench of High Court set aside judgment and decree passed by Single Judge of High Court and allowed the High Court appeal.

Case law referred.

Ms. Masooda Siraj, Zafar Hussain and Tariq Aziz for Appellants (in H.C.As. No.276 to 280, 288, 304 to 306, 338 and 339 of 2016).

Kashif Nazir for Appellant (in H.C.As. Nos.321 and 322 of 2016).

Mirza Nadeem Taqi, for Appellants (in H.C.A. No.263/2016).

Rashid Anwar for Respondents (in H.C.As. Nos.263, 281 to 288 of 2016).

Khalid Jawaid Khan for Respondents (in H.C.A. No.321/2016).

Syed Asif Ali for Respondent (in H.C.As. Nos.276 and 281 of 2016).

Zaheer-ul-Hasan Minhas and Haroon Gudal for Respondents (in H.C.As. Nos.82 to 85 of 2015).

Muhammad Ameen Bandukda for Respondent (in H.C.A. No.322 of 2016).

Ms. Sofia Saeed Shah, for Respondent (in H.C.As. Nos.280, 285, 287 and 304 of 2016).

Ghulam Shabbir Baloch, Assistant Attorney General.

Date of hearing: 4th May, 2017.

JUDGMENT

AQEEL AHMED ABBASI, J.---Through this common judgment, by consent of all the learned counsel, we intend to dispose of the above mentioned High Court Appeals, which require resolution of similar facts and decision on identical legal issue relating to maintainability of suit in view of statutory bar under a taxing statute.

2.Through High Court Appeals Nos.82 to 85 along with 95 and 96 of 2015, the appellants have impugned a common judgment and decree dated 02.02.2015 and 14.02.2015 respectively passed in Suit Nos.843, 907, 941 and 942 of 2014, whereby, learned Single Judge of this Court while formulating following three (03) issues for determination, has decided the same in favour of the respondents and against the appellant, which are reproduced herein below:--

1)Whether the suits are maintainable?

2)Whether the intravenous infusion (IV infusion) manufactured with low density polyethylene of pharmaceutical grade is a "pharmaceutical product" for purposes of the sales tax exemption under S.R.O. 551(I)/2008 dated 11.06.2008?

3)What should the decree be?

3.High Court Appeals Nos.263 to 279 of 2016, have been filed against the common judgment dated 15.07.2016 passed in Suit No.44/2015 (Artistic Denim Mills v. Federal Board of Revenue and others) along with other Suits as detailed in the Appendix attached with the impugned judgment available at page 55, whereby, learned Single Judge of this Court while formulating two (02) issues for determination, has decided the same in favour of the respondents and against the appellants, which are reproduced herein below:--

1)Whether the suits are maintainable?

2)Whether the plaintiffs are entitled for exemption from duties and taxes on the Import of generating sets, in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990?"

4.Whereas, High Court Appeals Nos.321 and 322 of 2017 have been filed against the common judgment dated 05.09.2016 passed in Suit No.1763/2016 (Umer Spinning Mills (Pvt.) Limited and others v. Federation of Pakistan and others) and Suit No.1875/2016 (Sunrays Textile Mills Ltd. v. Federation of Pakistan and others), whereby, learned Single Judge of this Court while formulating the following legal issues for determination has decided the same in favour of the respondents and against the appellant:-

1)Whether the suit is maintainable?

2)Whether the plaintiffs being spinners are entitled to claim benefit of S.R.O. 1125(I)/2001 dated 31.12.2011, as amended by two subsequent S.R.Os. (i) 154(I)/2013 dated 28.02.2013 and (ii) 491(I)/2016 dated 30.06.2016 while importing raw material for their spinning stage?

3)What should the decree be?

5.Since the learned counsel for the appellants in above cases have mainly argued on the legal objection as to maintainability of suit in view of specific bar in terms of Section 217 of the Customs Act, 1969, whereas, the learned counsel for the respondents have also made their submissions by supporting the impugned judgment on the issue of maintainability, therefore, we would like to dilate upon the legal issue of maintainability of suits, instead of recording our finding on merits of the claim of respondents regarding exemption of duty and taxes. There are three sets of HCAs arising from three different, however, combined judgments, passed in the suits filed by respondents, however, seeking similar relief i.e. benefit of subject SROs and exemption from duty and taxes. High Court Appeals Nos.82 to 85 of 2015 along with H.C.As. Nos.95 and 96 of 2015 were taken up for hearing earlier in time. It will be advantageous to refer to the order dated 30.03.2015 passed in the aforesaid High Court Appeals, which contained the brief legal grounds agitated by the appellants while filing the aforesaid High Court Appeals relating to maintainability of Suits in terms of Section 217(2) of the Customs Act, 1969, which reads as follows:--

"30-03-2015

Messrs Masooda Siraj and Kashif Nazeer, advocates for Appellants

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1. Urgency granted.

2. Office objection deferred.

3. Exemption granted subject to all just exceptions.

4&5. Through instant High Court Appeals, the appellants have impugned the common judgment and decree dated 02.02.2015 and 14.02.2015 respectively, passed in Suit Nos. 843, 907, 941 and 942 of 2014, whereby the learned Single Judge of this Court, while formulating following three issues for determination, decided the same in favour of respondents and against the appellants, which are reproduced herein below:-

i)Whether the suits are maintainable?

ii)Whether the intravenous infusion (IV infusion) manufactured with low density polyethylene of pharmaceutical grade is a "pharmaceutical product" for purposes of the sales tax exemption under SRO 551(I)/2008 dated 11.06.2008?

iii)What should the decree be?

Learned Counsel for the appellant at the very outset submits that the controversy raised by the respondents before the learned Single Judge in the aforesaid suits, was also agitated by some of the respondents before this Court through filing Constitution Petitions bearing Nos. 4804/2014, 3414, 3415, 3806 and 4493 of 2014, which were disposed of by a Division Bench of this Court vide consent order dated 18.11.2014, whereby, the petitioners were directed to raise all such factual as well as legal grounds in support of their claim for exemption from sales tax in respect of the raw material under dispute, which was to be decided by concerned Assessing Officer (not below the rank of Deputy Collector) of the respective Collectorate, who was further directed to decide the same through speaking assessment order(s) in respect of the consignments of the petitioners. Per learned Counsel, the determination regarding entitlement and claim of exemption from sales tax in terms of S.R.O. 551(I)/ 2008 dated 11.06.2008 is the domain of the revenue authorities, which otherwise, was directed to be decided by the concerned officers vide aforesaid order passed by a Division Bench of this Court, however, such aspect of the matter has not been taken into consideration by the learned Single Judge in spite of the fact that such order was produced before the learned Single Judge for consideration.

Learned Counsel for the appellants further contended that even otherwise, a suit is not maintainable in terms of section 217(2) of Customs Act, 1969, which provides that "no suit shall be brought in any Civil Court to set-aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of tax made under the Customs Act, 1969". Per learned Counsel, the determination of tax liability of a person and to consider the claim of exemption from payment of tax or duty etc. is the domain of the revenue authorities under the relevant tax Statute including Customs Act, 1969, which provides complete mechanism and the authorities for determination of liability of duty and taxes, and in case of any grievance, complete hierarchy has been provided, whereby, an aggrieved person can file appeal before the statutory forums, whereas, provision for filing a reference before this Court is also available, therefore, per learned counsel, any intervention by the Court of Civil jurisdiction is beyond the scope and violative of the Scheme of a taxing Statute. Per learned counsel, even on merits, the respondents did not have any prima facie case for grant of exemption from sales tax, therefore, the impugned order has been passed without lawful authority, which may be set-aside.

Contention raised by learned counsel for the appellant requires consideration. Let notice be issued to the Respondents to be served through first three modes of service for 21.04.2015. In the meanwhile, operation of impugned judgment and decree dated 02.02.2015 and 14.02.2015 respectively, shall remain suspended till next date of hearing."

6.Thereafter, notices were issued to the respondents, who filed their objections and the matter was adjourned from time to time, whereas, vide order dated 07.04.2017, passed by this Court in High Court Appeals Nos.263 to 279 of 2016, the aforesaid High Court Appeals were taken up for hearing by consent of the learned counsel for the parties along with similar High Court Appeals involving the identical issue regarding maintainability of Suits in view of specific bar provided under Section 217 of the Customs Act, 1969.

7.Similarly, High Court Appeals Nos.321 and 322 of 2016, arising from common judgment dated 05.09.2016 passed in Suit Nos.1763 and 1875/2016, were taken up for hearing in Court on 28.03.2017, when following order was passed:--

"28.03.2017:

Mr. Kashif Nazeer, advocate for the appellants.

M. Ilyas Ahsan, Law Officer, Customs Department.

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1.Deferred for the time being.

2.Granted subject to all just exceptions.

3-4. High Court Appeals have been filed against the common judgment dated 05.09.2016 passed by the learned Single Judge of this Court in Suit No.1763 of 2016 (Umer Spinning Mills (Pvt.) Limited and others v. Federation of Pakistan and others) and Suit No.1875 of 2016 (Sunrays Textile Mills Limited and others v. Federation of Pakistan and others), whereby, the suits filed by the respondents seeking declaration to the effect that the respondents being spinners are entitled to get the benefit of S.R.O. 1125(I)/2011 dated 31.12.2011 as amended from time to time have been decreed in favour of respondents. Learned counsel for the appellants at the very outset submits that the learned Single Judge formulated two (02) questions while deciding the suits, one relating to maintainability of the suits and the other relating to the claim of the respondents i.e. their entitlement to the benefit of S.R.O. 1125(I)/2011 dated 31.12.2011 as amended from time to time, however, according to learned counsel, the learned Single Judge has not recorded any reasons on the issue relating to maintainability of the suit, and has been pleased to hold that since no ground in relation to maintainability of suit is raised, therefore, the issue of maintainability is scored of, therefore, no reasons are recorded, whereas at the same time, the learned judge has been pleased to hold that in view of various judgments of the superior Courts, the suit is maintainable. It has been further contended by the learned counsel for the appellants that taxation laws, including the Customs Act, 1969, are special laws, which provide a self-contained mechanism as well as forums for redressal of grievance in case of any adverse order passed by the authorities, whereas, according to learned counsel, such tax matter cannot be dragged in the normal civil Courts as it amounts to depriving the relevant tax authorities to apply and interpret the relevant provisions of tax Statute, including Notifications and SROs, issued from time to time by the Federal Government or the F.B.R. for such purpose. Learned counsel for the appellants further argued that the bar provided in terms of Section 217 of the Customs Act, 1969, is required to be interpreted by this Court in such a manner that it may not frustrate the scheme of the Customs Act, 1969, so that timely collection of tax and duly shall not be unnecessarily delayed on account of procedural delay in civil Courts. In support of his contention, learned counsel for the appellants has placed on record copy of order dated 30.03.2015 passed by the Divisional Bench of this Court in H.C.As. Nos.82, 83, 84 and 85/2015 along with H.C.As. Nos.95 and 96 of 2015 in the case of Collector of Customs v. Messrs A.Z. Pharmaceutical Co. Ltd. and others, whereby, according to learned Counsel, under somewhat similar circumstances, Notices have been issued to the respondents and the operation of the impugned judgment and decree has been suspended.

Contention raised by the learned counsel for the appellants requires consideration. Let notice be issued to the respondents to be served through first three modes for 11.04.2017, when instant High Court Appeals may be taken up along with aforesaid High Court Appeals. In the meanwhile, operation of the impugned judgment shall remain suspended till next date of hearing, however, the claim of the respondents seeking benefit of S.R.O. 1125(I)/2011 dated 31.12.2011 as amended from time to time, shall be considered by the relevant authorities strictly in accordance with law without prejudice to the suspension of the impugned judgment in the instant cases."

8.Thereafter, High Court Appeals Nos.263 to 279/2016, arising from common judgment dated 15.07.2016 in Suit No.44/2015 (along with other connected Suits as detailed in the Appendix of impugned judgment at page 55) were taken up for hearing in Court on 07.04.2017, when following order was passed:--

"07.04.2017:

Ms. Masooda Siraj, advocate for the appellant(s).

a/w. Mr. Zafar Hussain, advocate and M. Ilyas Ahsan,

Appraising Officer (Legal), Customs Department.

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1.To be complied with before the next date of hearing.

2.Granted subject to all just exceptions.

3-4. Through instant High Court Appeals, the appellants have impugned the common judgment dated 15.07.2016 passed by the learned Single Judge of this Court in Suit No.44/2015 (Artistic Denim Mills Ltd. v. Federal Board of Revenue and others) as well as other suits as detailed in the appendix attached with the impugned judgment at Page:55, whereby, the learned Single Judge of this Court while formulating following two legal issues for determination has decided the same in favour of the respondents and against the appellants:--

"1.Whether the suits are maintainable?

2.Whether the plaintiffs are entitled for exemption from duties and taxes on the Import of generating sets, in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990?'

Learned counsel for the appellants at the very outset submits that "no suit shall be brought in any Civil Court to set-aside or modify and other passed, any assessment made, any tax levied, any penalty imposed or collection of tax made under the Customs Act, 1969." Per learned counsel, the determination of tax liability of a person and to consider the claim of exemption from payment of tax and duty etc. is the domain of the Revenue Authorities under the tax Statute including Customs Act, 1969, which provides complete mechanism as well as the authorities for determination of such liability of duties and taxes, and in case of any grievance, complete hierarchy has been provided, whereby, an aggrieved person can file appeal before the Statutory Forum including the forum of this Court in its reference jurisdiction as well as the forum of Hon'ble Supreme Court for final determination of any controversy relating to levy or imposition of tax and duty. Learned counsel for the appellants submits that under similar circumstances, the appellants have filed High Court Appeal No.82/2015 (and others), whereby, notices have been issued to the respondents and the operation of the impugned judgment and decree have been suspended. In support of her contention, learned counsel for the appellants has placed on record copy of order dated 30.03.2015 passed in the aforesaid High Court Appeal as well as order dated 28.03.2015 passed in High Court Appeal No.321/2016 (Collector of Customs and others v. Messrs Umer Spinning Mills Limited and others). Contention raised by learned counsel for the appellants requires consideration.

Let notice be issued to the respondents as well as DAG for 11.04.2017 to be served through first three modes, when instant High Court Appeals may be taken up for hearing along with aforesaid High Court Appeals. In the meanwhile, operation of the impugned judgment and decree shall remain suspended till next date of hearing. However, the claim of the respondents seeking exemption from payment of duties and taxes on the Import of generating sets, in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990, shall be considered by the relevant authorities strictly in accordance with law without being prejudiced with the order of suspension of the impugned judgment and decree, in the instant High Court Appeals."

9.In all the aforesaid High Court Appeals after examining the contention of the appellants, while issuing notices to the respondents, the impugned judgment(s) and decree(s) were suspended by this Court, whereas, by consent of learned counsel for the parties, vide order dated 11.04.2017 passed by this Court in High Court Appeals Nos.263 to 279 of 2016, all the aforesaid High Court Appeals were directed to be taken up together and to be decided through common judgment, in view of the fact that identical ground regarding maintainability of Suit in terms of section 217 of the Customs Act, 1969, was agitated by the appellants for determination by this Court. Above matters came up for hearing on several dates and were argued by all the learned counsel for the appellants as well as the learned counsel for the respondents mainly on the issue of maintainability of suits, and the appeals were finally heard and reserved for judgment on 04.05.2017.

10.Ms. Masooda Siraj Advocate, learned counsel appearing in some of the High Court Appeals, while leading the arguments on behalf of the appellants, has vehemently argued that the impugned judgments passed by the learned Single Judge of this Court, while exercising jurisdiction at original side, in the above Suits are without jurisdiction and lawful authority, as filing of Suit before any Court in terms of Section 217 of the Customs Act, 1969, is specifically barred. It has been contended by the learned counsel for the appellants that determination of tax liability of a person, and to consider the claim of exemption from payment of tax and duty etc. is the exclusive domain of the revenue authorities provided under the Customs Act, 1969, which provides a complete mechanism as well as the authority for determination and assessment of any liability of duty and taxes, whereas, in case of any dispute in this regard, complete hierarchy and the forums have also been provided, whereby, an aggrieved person can file appeal before such appellate forum, which also includes the forum of this Court in its reference jurisdiction under Section 196 of the Customs Act, 1969, as well as the forum of Hon'ble Supreme Court, for final determination of any legal controversy relating to levy or imposition and exemption from duty and taxes. It has been further contended by the learned counsel for the appellants that interpretation of any provision of law, rules or any Notification/SRO issued in respect of levy or exemption from duty and taxes by the Federal Government is the domain and responsibility of such taxation authorities as provided under the taxing statute, however, such dispute relating to determination or assessment of duty and taxes cannot be allowed to be agitated by filing a suit before the Civil Court, as has been done in the aforesaid cases, whereby, declarations have been sought to the effect that the respondents are entitled to exemption from payment of duty and taxes. Per learned counsel, a party cannot otherwise, be allowed to abandon a statutory forum provided under the special law for the purposes of assessment and determination of tax liability of a person, nor can be allowed to bypass the appellate forum provided under the special law for redressal of grievance, as it would render the statutory forum and the remedy of appeal for redressal of grievance, as nugatory, and would not only amount to showing no confidence on such statutory forums, but it will also increase the unnecessary burden upon the Courts, which are already heavily burdened with large number of pending cases. It has been contended by the learned counsel for the appellants that in the impugned judgments, the learned Single Judges have failed to appreciate and examine the scope of Section 217 of the Customs Act, 1969, as well as the provisions of Section 9, C.P.C., whereby, the jurisdiction of a Civil Court has been specifically barred excluded in matters relating to determination of liability of duty and taxes under the Customs Act, 1969. It has been further contended by the learned counsel for the appellants that the matter regarding entitlement of exemption from duty and taxes or reduction in tax liability in respect of a person or establishment otherwise, includes scrutiny and determination of disputed facts by the specialized forums and the authorities provided under the taxing statutes, including Customs Act, 1969, hence, it does not fall within the domain of original civil jurisdiction of this Court particularly, in view of specific bar in terms of Section 217 of the Customs Act, 1969. It has been prayed by the learned counsel for the appellant that the impugned judgment(s) and decree(s) may be set aside and the respondents may be directed to approach the relevant authorities and the forum provided under the Customs Act, 1969 for redressal of their grievance, if any, in accordance with law. In support of her contention, learned counsel for the appellants has placed reliance in the following case law:--

1.Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse (2004 PTD 1189).

2.Collector of Central Excise, Karachi and another v. Syed Muzakkar Hussain and another (2006 PTD 219).

3.Malik Muhammad Saeed v. Federation of Pakistan and others (2006 PTD 2167).

4.Messrs Shadman Cotton Mills Ltd. through Director v. Federation of Pakistan through the Chairman, Central Board of Revenue (Revenue Division), Islamabad and another (2009 PTD 193).

5.Ghani and Tayub (Pvt) Ltd., Karachi Vs. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others (2010 PTD 817).

6.Messrs P.M. International through Special Attorney v. Federation of Pakistan through Secretary Revenue Division (F.B.R) and 3 others (2010 PTD 1293).

11.Mr. Kashif Nazir Advocate, learned counsel appearing on behalf of the appellants in H.C.As. Nos.321 and 322 of 2016, while adopting the arguments advanced by Ms.Masooda Siraj, advocate, has further contended that suit in respect of determination of liability of tax or duty under the Customs Act, is not only barred in terms of section 217 of the Customs Act, 1969, but also not maintainable in terms of section 9 of C.P.C., which relates to jurisdiction of the Court to try all suits of civil nature, however, excepting suits of which their cognizance is either expressly or impliedly barred. According to learned counsel, the dispute agitated in the subject suits relates to interpretation and application of different SROs/Notification, whereas, the plaintiffs have sought a declaration to the effect that their consignments are exempted from payment of duty and taxes. However, according to the learned counsel, determination and assessment of liability of duty and taxes is the responsibility of the custom authorities, as provided under the Customs Act, 1969, which is a special taxing statute, and such assessment or determination of duty and taxes cannot be considered as a dispute of civil nature as visualized in terms of Section 9 of Civil Procedure Code, 1908. According to learned counsel, Customs Act, 1969, is a special enactment, which contains its own charging provisions, as well as provisions relating to assessment and determination of duty and taxes in respect of any consignment imported by an importer, and also provides for a complete mechanism and the remedies for redressal of grievance by way of filing an appeal before Collector (Appeals) under Section 193 of the Customs Act, 1969 and before Customs Appellate Tribunal under Section 194 of the Customs Act, 1969, and also the forum of High Court under its reference jurisdiction in terms of Section 196 of the Customs Act, 1969, for determination of any question of law, whereas, leave to appeal is also provided before the Hon'ble Supreme Court in terms of Article 184 of the Constitution of Islamic Republic of Pakistan, 1973, for final determination of any dispute under the Customs Act, 1969. Whereas, according to learned counsel, there is no scope or application of the provisions of C.P.C. in respect of disputes relating to assessment or determination of custom duty and taxes under the Customs Act, 1969. Per learned counsel, dispute relating to determination of liability of custom duty and taxes under the Customs Act, 1969, cannot be termed as a dispute of civil nature, which can be agitated before a Court of civil jurisdiction in terms of Section 9 of C.P.C.. It has been further argued by the learned counsel for the appellants that exception has also been provided in terms of Section 9, C.P.C., according to which, civil courts have no jurisdiction to entertain suits of which their cognizance is either expressly or impliedly barred, whereas, in terms of Section 217(2) of the Customs Act, 1969, express bar has been provided according to which, no suit can be brought in any civil court in respect of any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under the Customs Act, 1969. Learned counsel for the appellants further submits that application and interpretation of SRO/Notification issued under the Customs Act, 1969, is part of assessment and determination of duty and taxes, therefore, such excise of authority by the customs officials cannot be subjected to be agitated before any civil court, by way of filing a suit. While concluding his arguments, learned counsel for the appellants has prayed that the impugned judgment(s) and decree(s) may be set-aside and it may be declared that suits under the Customs Act, 1969, are barred by law, hence not maintainable.

12.Conversely, Mr. Rashid Anwar Advocate, learned counsel representing some of the respondents in the aforesaid High Court Appeals has supported the impugned judgment(s) on the point of maintainability and has referred to the merits of the case, which according to learned counsel, would justify the filing of suits instead of availing the departmental remedy. Learned counsel for respondent has argued that imported consignment once assessed and released in terms of Section 80 of the Customs Act, 1969, cannot be re-assessed, unless Show-Cause Notice under Section 32 of the Customs Act, 1969, whereas, according to learned counsel, in the instant matters, the customs authorities, without issuing any Show-Cause Notice in terms of Section 32 of the Customs Act, 1969, have re-assessed the value of the subject consignment, while placing reliance in the clarification issued by the FBR, inspite of the fact that such clarification has no binding effect in quasi-judicial proceedings. Per learned counsel, since the customs authorities have not acted in accordance with law, whereas, a legal point relating to application and interpretation of SRO/Notification is involved in the instant matters, therefore, instead of invoking the statutory remedies and approaching the departmental forums, the respondents have filed suits, seeking a declaration to the effect that respondents are entitled to the exemption from levy of customs duty and taxes on import of generating sets in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990. Per learned counsel, there is no cavil to the submissions made by the learned counsel for the appellants to the effect that the Customs Act, 1969, provides for a self-contained mechanism for determination and assessment of duty and taxes under the Customs Act, 1969, and also provides forums and the remedies of appeal and reference before this Court, however, according to learned counsel, if the act of determination or assessment of duty and taxes by any customs authority is patently illegal and without lawful authority, the same can be assailed by way of filing of a suit, particularly, when some clarification is issued by the Board in respect of subject controversy, which renders the alternate remedy before the departmental forums as illusionary. Per learned counsel, if certain conditions are met, then suit is maintainable, and the learned Single Judge of this Court while exercising civil original jurisdiction, is competent to declare any act, order or decision of a tax official as illegal and without lawful authority. Learned counsel for the respondent while having given a brief history relating to original civil jurisdiction of the High Court, has also referred to the provision of Section 9, C.P.C., which according to learned counsel, gives an authority to a civil court to decide any dispute of civil nature and also to give a declaration in respect of assessment of duty and taxes under the Customs Act, 1969, if provided such determination or assessment has been made without lawful authority or in violation of law or principle of Natural justice. In support of his contention, learned counsel for the respondent has placed reliance in the following case-law:--

1.Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842)

2.Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1)

3.The State v. Zia-ur-Rahman and others (PLD 1973 SC 49)

4.Abbasia Cooperative Bank (now Punjab Provincial) Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others (PLD 1997 SC 3)

5.Province of the Punjab through (Collector District Khushab, Jauharabad and others v. Yaqoob Khan (2007 SCMR 554)

6.Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698)

7.Usman Punjwani and another v. Government of Sindh and another (1996 CLC 311)

8.Messrs K.G. Traders and another v. Deputy Collector of Customs and 4 others (PLD 1997 Karachi 541)

9.Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671)

10.Samiullah and another v. Fazle Malik and another (PLD 1996 SC 827)

11.Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61)

12.Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2283)

13.Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423)

14.Pakistan v. Messrs Zeal Pak Cement Factory Limited (1985 SCMR 1968)

15.Dinanath Kumar v. Nishi Kanta Kumar and others (AIR (39)1952 Calcutta 102 (C.N. 37).

16.Shridhar v. Nagar Palika, Jaunpur and others (AIR 1990 SC 307).

17.M/s. Bombay Chemical (Pvt.) Ltd. v. Collector of Central Excise (AIR 1995 SC 1469).

18.M/s. Gujarat State Fertilizers Co. v. Collector of Central Excise (AIR 1997 SC 3620).

19.Hansraj Gordhandas v. H. H. Dave, Assistant Collector of Central Excise and Customs, Surat and others (AIR 1970 SC 755).

20.M/s. Swadeshi Polytex Ltd. v. Collector of Central Excise (AIR 1990 SC 301).

13.Messrs Zaheer-ul-Hassan Minhas and Haroon Gudal, learned counsel appearing on behalf of the respondents in H.C.As. Nos.82 to 85 and 96 of 2015, have adopted the arguments advanced by Mr. Rashid Anwar Advocate, and have prayed that impugned judgment in the instant matters shall be maintained and HCAs filed by the appellants be dismissed.

14.Mr. Khalid Jawaid Khan Advocate, learned counsel appearing on behalf of the respondents in H.C.A. No.321/2016, has contended that the bar provided in terms of Section 217 of the Customs Act, 1969, is not absolute, whereas, civil court and the learned Single Judge of this Court, while exercising powers under civil original jurisdiction, can entertain any suit filed in respect of determination and assessment of custom duty and taxes under the Customs Act, 1969. According to learned counsel, the ouster clause under section 217(2) of the Customs Act, 1969, needs narrow and restrictive interpretation and cannot be considered as absolute bar in every case relating to determination of custom duty. Learned counsel for the respondent has argued that statute creating some rights and obligations, including fiscal statutes such as Customs Act, 1969, also provides for statutory forums and remedies for redressal of grievance of an aggrieved person. For instance, according to learned counsel, if Order-in-Original (ONO) is passed by the customs authorities then the same can be assailed by filing an appeal before the Collector (Appeals) under Section 193 of the Customs Act, 1969, however, if the order under the Customs Act, 1969, is without lawful jurisdiction, or the order or decision of such authority is patently illegal, and has been passed in violation of principles of Natural justice, then according to learned counsel, such order or decision can be challenged by filing a constitution petition or a suit before this Court, instead of availing the alternate remedy provided under the Customs Act, 1969. It has been further contended by the learned counsel for the respondent that in respect of any dispute under the Customs Act, 1969, which involves interpretation of law, and there is no appealable order passed by the Customs Authorities, then in such situation, it can be challenged by filing a constitutional petition or the suit at original side of this Court, in order to avoid delay and hardship to an importer. Learned counsel further argued that in case of unlawful assumption of jurisdiction or violation of principles of Natural justice e.g. where right of hearing denied, or in a case where a Notice issued by customs authorities is time barred, then, according to learned counsel, such proceedings, act or the decision of the Custom Authorities can be assailed by filing a Constitutional Petition under Article 199 of the Constitution, or a suit before this Court, seeking a declaration to the effect that the proceedings initiated by the tax authorities or the order/decision of the Authority is without lawful authority and jurisdiction. While concluding his argument, learned counsel for the respondent submits that in view the facts and circumstances of the instant cases, it is clear that suits filed by the respondents are not hit by provisions of Section 217 of the Customs Act, 1969 or the exception provided under Section 9, C.P.C., therefore, according to learned counsel, the learned Single Judge of this Court has rightly entertained such suits, and has passed the judgment and decree in favour of the respondents, which does not suffer from any defect or legal error, hence requires no interference by this Court in the instant High Court Appeals. In support of his contention, learned counsel for the respondents has placed reliance in the following case law:--

1.Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse (2004 PTD 1189).

2.Collector of Central Excise, Karachi and another v. Syed Muzakkar Hussain and another (2006 PTD 219).

3.Malik Muhammad Saeed v. Federation of Pakistan and others (2006 PTD 2167).

4.Messrs Shadman Cotton Mills Ltd. through Director v. Federation of Pakistan through the Chairman, Central Board of Revenue (Revenue Division), Islamabad and another (2009 PTD 193).

5.Ghani and Tayub (Pvt) Ltd., Karachi v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others (2010 PTD 817).

6.Messrs P.M. International through Special Attorney v. Federation of Pakistan through Secretary Revenue Division (F.B.R) and 3 others (2010 PTD 1293).

7.Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423)

8.Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61)

9.Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2283)

10.Collector of Central Excise, Karachi and another v. Syed Muzakkar Hussain and another (2006 PTD 219).

11.Engro Elengy Terminal ((Pvt) Ltd. through Authorized Representative v. Federation of Pakistan through Secretary Revenue Division and 6 others (2017 PTD 959)

12.Muhammad Khan and others v. Province of Punjab and others (2007 SCMR 1169)

15.Mr. Muhammad Ameen Bandukda, learned counsel appearing on behalf of the respondent in H.C.A. No.322/2016, has also adopted the arguments advanced by Messrs Rashid Anwar and Khalid Jawaid Khan, Advocates, and has also referred to the merits of the case regarding application of S.R.O. 551(I)/2008 dated 11.06.2008, which according to learned counsel, is attracted to the facts of respondents' case, therefore, it may be declared that respondents are entitled to claim the benefit of exemption.

16.While exercising the right of rebuttal on behalf of the respondents, Ms. Masooda Siraj Advocate has contended that contention of the learned counsel for the respondents to the effect that in the instant matters, there is no appealable order, which could be appealed in terms of Section 193 of the Customs Act, 1969, is incorrect in law and facts of the cases in hand, as according to learned counsel, in the instant matters, there are orders under section 80 of the Customs Act, 1969, which have been admittedly communicated to the respondents through computerized (WEBOC) system and such order or re-assessment under Section 80 of the Customs Act, 1969, is an appealable order in terms of section 193 of the Customs Act, 1969. In support of her contention, learned counsel for the appellant has placed reliance in the case of Messrs P.M. International through Special Attorney v. Federation of Pakistan through Secretary Revenue Division (F.B.R) and 3 others (2010 PTD 1293).

17.We have heard the learned counsel for the parties, perused the record and the impugned judgment(s) and decree(s), passed in the aforesaid suits with their assistance, and have also examined the relevant provisions of law and the case laws as referred and relied upon by the learned counsel for the parties in support of their respective contentions. Since all the aforesaid High Court Appeals arising from the judgment(s) and decree(s) passed by the learned Single Judge(s) of this Court while exercising original civil jurisdiction, have been heard together, by consent of learned counsel for the parties, to consider the preliminary legal issue regarding jurisdiction of a civil court to entertain a suit in a dispute relating to determination of liability in respect of duty and taxes under the Customs Act, 1969, with particular reference to provision of section 217(2) of the Customs Act, 1969, therefore, instead of repeating the facts involved in the aforesaid matters, we would record our findings on the legal issue regarding maintainability of suit in terms of section 217(2) of the Customs Act, 1969, and would not dilate upon merits of the case. Admittedly, the dispute agitated and the declaration sought by the plaintiffs through their respective suits before the learned Single Judge(s) of this Court relates to determination of liability of custom duty and taxes and their claim of exemption which has been denied by the Customs Authorities by interpreting the provisions of SROs issued under the Customs Act, 1969 and the Sales Tax Act, 1990. In High Court Appeals Nos.82 to 85 of 2015 along with 95 and 96 of 2015 (Suit Nos.843, 907, 941 and 942 of 2014) declaration has been sought to the effect as to whether the intravenous infusion (IV infusion) manufactured with low density polyethylene of pharmaceutical grade is a "pharmaceutical product" for purposes of the sales tax exemption under S.R.O. 551(I)/2008 dated 11.06.2008. Whereas, in H.C.As. Nos.263 to 279 of 2016 (Suit No.44/2015) declaration has been sought to the effect as to whether plaintiffs are entitled for exemption from duty and taxes on the import of generating sets, in terms of Schedule V of the Customs Act, 1969, and Schedule VI of the Sales Tax Act, 1990. Similarly, in H.C.As. Nos.82 to 85 of 2015 and HCAs Nos.95 and 96 of 2015, interpretation and application of S.R.O. 551(I)/2008 dated 11.06.2008 to the facts of appellants' case has been sought. From perusal of the contention of the learned counsel for the appellant as referred to hereinabove, it transpired that instead of arguing the merits of the case in detail, learned counsel for the parties have made their submissions mainly on the legal issue involved in all the aforesaid High Court Appeals relating to maintainability of a suit in view of specific bar as contained under Section 217 (2) of the Customs Act, 1969 as well as the exclusion of jurisdiction of Civil Court in terms of Section 9 of the Civil Procedure Code (C.P.C.) 1908. It will be advantageous to examine the scope and application of the provisions of Section 217 of the Customs Act, 1969, providing for a bar of filing civil suit in respect of matters relating to the Customs Act, 1969, as well as the provisions of Section 9 of the Civil Procedure Code, 1908, which not only regulates the jurisdiction of civil court in respect of suits involving civil nature dispute, but also provides a bar of entertaining suits cognizance of which is expressly or impliedly barred. Both the Sections are reproduced hereunder for the sake of convenience and reference.

"Section 217 of the Customs Act, 1969.

217. Protection of action taken under the Act.---[(1) No suit, prosecution or other legal proceeding shall lie against the [Federal Government] or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules [and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued thereunder without the prior approval of the [Board]

[(2) No suit shall be brought in any civil court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.]

"Section 9 of Civil Procedure Code, 1908.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

Bare perusal of the provisions of subsection (1) of section 217 of the Customs Act, 1969, reflects that protection has been provided against prosecution or other legal proceedings to the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance to the Customs Act, 1969, or the rules made thereunder for the time being enforce, whereas, further protection is provided against any investigation or inquiry to be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under the Customs Act, 1969, rules, instructions, or directions made or issued thereunder without the prior approval of the board. Whereas, in terms of subsection (2) of section 217 of the Customs Act, 1969, specific bar has been provided against bringing a suit in any civil Court to set-aside or modify any order passed, any assessment made, any tax levied, any penalty imposed, or any collection of tax made thereunder. In other words, there are two types of protections have been provided in terms of section 217 of the Customs Act, 1969, firstly; to the acts of the Custom Authorities performing their duties under the Customs Act, 1969, in good faith, against any legal proceeding or prosecution by filing a suit and secondly; to the order passed, assessment made, any tax levied, any penalty imposed or collection of any tax made under the Customs Act, 1969, whereas, jurisdiction of Civil Courts to entertain any suit has been specifically excluded by law. The reason behind such protection to the acts of the Customs Authorities as well as to the order passed, assessment made, any tax levied, any penalty imposed or collection of any tax made under the Customs Act, 1969, is obvious from the language of law and the fact that Customs Act, 1969, is a special law relating to imposition and collection of custom duty at the import stage from the importers, which also provides a complete mechanism, as well as the time frame, for the purposes of determination and assessment of liability in respect of custom duty and tax leviable under the Customs Act, 1969, whereas, in case of any dispute, it also provides for remedies for redressal of grievance through statutory forums of Collector (Appeals) under Section 193 of the Customs Act, 1969, Customs Appellate Tribunal in terms of section 194 of the Customs Act, 1969, and the forum of High Court to hear a reference on a question of law under section 196 of the Customs Act, 1969, whereafter, an aggrieved party can also approach the Hon'ble Supreme Court by filing a leave to appeal in terms of Article 184 of the Constitution of Islamic Republic of Pakistan, 1973, for final determination of the subject dispute relating to levy of duty and taxes under the Customs Act, 1969. It will not be out of place to refer to the enactment of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, whereby, the legislature, being cognizant of complaints regarding maladministration by tax authorities administering the tax laws, promulgated the aforesaid Ordinance, for the appointment of Federal Tax Ombudsman to diagnose, investigate, redress and rectify injustice done to a person through maladministration by the tax officials. Definition of maladministration has been provided in terms of subsection (3) of the section 2 of the Ordinance, 2002, according to which, "maladministration" includes,-

(i)a decision, process recommendation, act of omission or commission which -

(a)is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons;

(b)is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory

(c)is based on irrelevant grounds; or

(d)involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favouritism, nepotism, and administrative excesses;

(ii)neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities.

(iii)repeated notices, unnecessary attendance or prolonged hearings while deciding cases involving;

(a)assessment of income or wealth;

(b)determination of liability of tax or duty;

(c)classification or valuation of goods;

(d)settlement of claims of refund, rebate or duty drawback; or

(e)determination of fiscal and tax concessions or exemptions.

(iv)willful errors in the determination of refunds, rebates or duty drawbacks;

(v)deliberate withholding or non-payment of refunds, rebates or duty drawbacks already determined by the competent authority;

(vi)coercive methods of tax recovery in cases where default in payment of tax or duty is not apparent from record; and

(vii)avoidance of disciplinary action against an officer or official whose order of assessment or valuation is held by a competent appellate authority to be vindictive, capricious, biased or patently illegal.

It is pertinent to note that in terms of section 11 of the Federal Tax Ombudsman Ordinance, 2000, if the Federal Tax Ombudsman is of the opinion that the matter considered amounts to maladministration, he shall communicate his finding with a recommendation to the revenue division within a period of 60 days from the date of receipt of the complaint, reference or motion as the case may be, whereafter, the revenue division shall within such time as specified by the Federal Tax Ombudsman inform him about the action taken on his recommendation or the reason for non-compliance with the same. The decision of the Federal Tax Ombudsman can be assailed by an aggrieved party by filing a representation to the President of Pakistan under Section 32 of the Federal Tax Ombudsman Ordinance, 2000, within thirty (30) days of such decision, whereas, the President may pass order on such representation as he may deem fit in accordance with law. It is interesting to note that the action taken by any order passed by the Federal Tax Ombudsman under Federal Tax Ombudsman Ordinance, 2000, has also been protected by providing a bar of jurisdiction in terms of Section 29 of the Ordinance, according to which no court or other authority shall have jurisdiction.

"29. Bar of jurisdiction.---No Court or other authority shall have jurisdiction to:-

(a)question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Ordinance; or

(b)grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by or under the orders or at the instance of the Federal Tax Ombudsman.

However, the difference with regard to bar of jurisdiction in terms of section 217 of the Customs Act, 1969, is that there is a bar of jurisdiction against a suit before Civil Court, whereas, under Section 29 of the Ombudsman Ordinance, 2002, jurisdiction of all the Courts has been excluded to question the proceedings under the Ombudsman Ordinance, 2002. Similarly, in terms of Section 30 of the Federal Tax Ombudsman Ordinance, 2000, immunity has been provided to the FTO as well as to the authorized officer for anything, which is in good faith done or intended to be done under this Ordinance.

18.In all the Federal Taxation Laws, including the Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001, Federal Excise Tax Act, 2005, specialized forum for determination and assessment of liability of duty and taxes as well as the appellate forum for redressal of grievance have been provided by the legislature which clearly reflects upon the intention of the legislature to avoid delay or duplication of proceedings and also to ensure collection of duty and taxes at relevant stage, within the statutory period provided under the relevant statute. Such intention of the legislature is also manifest from perusal of the provision relating to bar of jurisdiction of civil court to entertain dispute relating to determination and assessment of duty and tax liability in terms of Section 217 of the Customs Act, 1969, Section 227 of the Income Tax Ordinance, 2001, Section 51 of the Sales Tax Act, 1990, section 41 of the Federal Excise Act, 2005, as well as in the provincial taxing statute i.e. Sindh Sales Tax on Services Act, 2011. In addition to aforementioned provisions relating to specific ouster of jurisdiction of civil court under the special tax laws as referred to hereinabove, the assumption of jurisdiction of a civil court in terms of section 9 of the C.P.C., 1908, to try suits is also restricted and qualified to try all suits of civil nature, whereas, suits for which their cognizance is either expressly or impliedly barred, the jurisdiction of the Civil Courts is specifically barred.

19.In order to examine the powers and functions of Civil Courts, it will be relevant to examine the provisions of West Pakistan, Civil Courts Ordinance, 1962. In terms of provisions of (West Pakistan) Civil Court Ordinance, 1962, three classes of civil courts have been established, which include the Court of (a) District Judge (b) the Court of Additional District Judge and (c) the Court of Civil Judge. As per Section 7 of the West Pakistan Civil Court Ordinance, 1962, prior to amendment by Ordinance XXX of 2002, provided for the original jurisdiction of the District Judge in suits, according to which, except as otherwise provided by any enactment for the time being in force, the Court of District Judge shall have jurisdiction in original civil suits without limit as regards the value. However, through amendment in Section 7 by Ordinance No.XXX of 2002, the original civil jurisdiction in respect of civil suits has also been extended to the High Court at principal seat Karachi district, where the value exceeds Rupees Thirty Lacs. The amended provision of section 7 prior to further amendment through Sindh Civil Courts (Amendment) Act, 2010, read as follows:-

"Section 7

Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit or the value thereof excepting in the Karachi District where the original jurisdiction in civil suits and proceedings of the value exceeding thirty lacs of rupees shall be exercised by the High Court."

However, through amendment by Sindh Civil Courts (Amendment) Act, 2010, Section 7 has been amended in the following terms:--

"2. Amendment of section 7 of West Pakistan Ordinance, No.II of 1962.---In the Sindh Civil Courts Ordinance, 1962, hereinafter referred to as the said Ordinance, for section 7, the following shall be substituted.

"(7) Original Jurisdiction of Court of District Judge.---Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding fifteen million rupees shall be exercised by the High Court:"

Provided that nothing contained hereinabove shall affect any suit or proceedings pending in the High Court prior to the commencement of the Sindh Civil Courts (Amendment) Act, 2010 and all such suits and proceedings shall continue to be tried and decided by the High Court."

20.Perusal of hereinabove provisions reflects that jurisdiction of Sindh High Court to entertain suit is neither the ordinary nor the extra ordinary civil jurisdiction of the Court, but simply District Court's jurisdiction, which is conferred and regulated by a provincial statute as referred to hereinabove. In other words, a suit involving civil nature dispute exceeding the value of Rs.15 Million in respect of District of Karachi only, can be filed in High Court before learned Single Judge at original side, however, except suits, cognizance of which has been specifically excluded by law. It will not be out of place to observe that the learned Single Judge of this Court, while trying a civil suit at original side, exercises the same power as of a civil court as vested in the District Judge in terms of section 7 of the Sindh Civil Courts (Amendment) Act, 2010, therefore, the restriction and the qualification imposed in terms of section 9 of Civil Procedure Code 1908, is equally applicable in respect of a suit before the learned Single Judge of this Court.

21.From perusal of the pleadings and the declaration sought by the respondents in their respective suits as well as the judgment(s) and decree(s) passed by the learned Single Judge(s) in above cases, it appears that various goods declaration filed by the respondent at the time of import of subject consignment before the Custom Authorities, seeking exemption from levy of duty and taxes in terms of S.R.O. 551(I)/2008 dated 11.06.2008 in H.C.As. Nos.82 to 85 of 2015 and S.R.O. 1125(I)/2011 dated 31.12.2011 in H.C.As. Nos.321 to 322 of 2016, and exemption in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990, on the import of generating sets in H.C.As. Nos.263 to 279 of 2016, the customs authorities have declined to extend the benefit of the above said SROs and have assessed/re-assessed their respective goods declarations under Section 80 of the Customs Act, 1969. Though we have already observed that we are not inclined to examine the merits of the case relating to their claim of exemption of duty and taxes, however, we are inclined to observe that after amendment in Section 80 of the Customs Act, 1969, by Finance Act, 2005, goods once assessed by the customs authorities under section 80 at the time of import can be subjected to examination by an officer of the customs at any time after the import of goods into the country during and after release of the goods by the customs, whereas, if during the checking of goods declaration, it is found that any statement in such declaration, document or any information so furnished is not correct in respect of any matter relating to assessment, the goods shall, without prejudice to any other action, which may be taken under the Act, can be re-assessed to duty. We may further observe that after substitution of section 193 of the Customs Act, 1969, through Finance Ordinance, 2002, any decision or order under sections 33, 79, 80 and 179 by an officer of custom below the rank of Additional Collector has been made appealable before the Collector (Appeals) within 30 days of the date of communication of such decision or order. However, in the above cases, the respondents, instead of availing the remedy of filing an appeal in terms of Section 193 of the Customs Act, 1969, against the orders in terms of Section 80 of the Customs Act, 1969, have filed civil suits before the learned Single Judge of this Court on its original side, seeking declaration(s) to the effect that respondents are entitled to the benefit of exemption from duty and taxes in terms of SROs as referred to hereinabove. There can be valid grounds and objection with regard to proprietary or legality of the impugned treatment meted out by the customs authorities to the goods declaration(s) filed by the respondents in respect of their subject consignments while invoking the provision of Section 80 of the Customs Act, 1969, however, the said grounds could have been agitated and raised by the respondents before the Collector of Customs (Appeals) by filing an appeal under Section 193 of the Customs Act, 1969, however, such remedy and the forum provided under the law, has been abandoned and bypassed by the respondents in the instant cases, on the pretext that impugned orders are not appealable orders as no reasons have been given, or the forum of appeal before the Collector (Appeals) is illusionary as in view of the clarification issued by the F.B.R. relating to interpretation of subject SROs no departmental authority or appellate forum will be against such clarification issued by the FBR. It has been further argued on behalf of the respondents that since the impugned orders or decisions by the customs authorities are without lawful authority and have been passed without providing proper opportunity, therefore, the same can be challenged by way of filing the suit on legal grounds. The Hon'ble Single Judge of this Court while deciding Suits Nos.843/2014, 907/2014, 941/2014 and 942/2014 vide impugned order dated 02.02.2015 (in H.C.A. Nos. of 2015) has been pleased to hold that the term "pharmaceutical product" is not limited to chapter 30 of the Import Tariff and plaintiffs' case falls within the scope of the Notification, therefore, is entitled to the benefit of exemption. As regards the issue of maintainability of the suits with reference to section 217 of the Customs Act, 1969, the Hon'ble Court has been pleased to observe that "neither the provision of Section 217 nor its equivalent to the Act, Section 51 of the Sales Tax Act, 1990, applies as the substantive issue before me relates to the proper interpretation, scope and application of an exemption notification. The determination of the true legal meaning of such an instrument is, in the end, always a matter for the Court to determine". It has been further observed by the Hon'ble Court that reference to Section 9, C.P.C. and Section 42 of the Specific Relief Act, 1877, are not relevant. In addition to the observation having been made hereinabove, the Hon'ble Judge while addressing the issue of maintainability has been further pleased to refer to the reported judgments of this Court as well as of the Hon'ble Supreme Court relied upon by the learned counsel for the customs department, on the point of maintainability of the suit, and observed that since the facts and issues involved in cited cases are different, therefore, the reliance is misplaced. The Hon'ble Single Judge of this Court while deciding the Suits Nos.1763 and 1875 of 2016 vide impugned judgment dated 05.09.2016 (H.C.As. Nos.321 and 322 of 2016) has been pleased to hold that plaintiffs in suits being spinners are entitled to claim benefit of S.R.O. 1125(I)/11 dated 31.12.2011 as amended by two subsequent SROs while importing raw material for their spinning stage, hence decided the issue No.2 in affirmative, however, no finding has been recorded in respect of issue No.1 relating to maintainability of the suit. Whereas, it has been observed "that since no ground in relation to the maintainability of suit is raised I scored off this issue from providing any reason from finding." The Hon'ble Single Judge of this Court while deciding Suit No.41/2015 along with (18) other connected suits as detailed in the appendix attached with the impugned judgment dated 15.07.2016 at page 15, has been pleased to decide both the issues relating to maintainability of suits and also the merits of the case i.e. entitlement of plaintiffs for exemption from duty and taxes on the imports of generating sets in terms of Schedule V of the Customs Act, 1969 and Schedule VI of the Sales Tax Act, 1990, in favour of the plaintiffs. While dealing with the issue relating to maintainability of suits the Hon'ble Judge has been pleased to observe that in the first category of cases, wherein the consignments have been released and demands have been raised, no proper Show-Cause Notice was ever issued nor the plaintiffs were ever granted any opportunity of being heard, therefore, it appears to be an academic exercise to ask the plaintiffs to avail any alternate remedy as neither there is any order in field nor the proper course as required in law has been followed. It has been further observed that since the demand raised is without any lawful authority, therefore, the bar contained under Section 217 of the Customs Act, 1969 would not come into play. According to the Hon'ble Judge, since the entire case of the defendants is based on a clarification issued by defendant No.2 dated 05.12.2014 which is a matter of interpretation of a provision of the Act and therefore, this Court is fully competent to interpret the Act as well as the effect of any such clarification. It may further be noted that the impugned clarification has been issued by the highest forum available under hierarchy of the Customs Act i.e. FBR and therefore, any further remedy which could have been sought by the plaintiffs would remain illusionary in nature; hence, instant Suits are otherwise maintainable as well. In cases wherein the consignment has been released and demand has been raised the proper course would have been to issue Show-Cause Notice under Section 32 of the Customs Act, 1969, therefore, the bar as contained under Section 217 of the Customs Act, 1969, would not come into play. It has been further observed that since it is a matter of interpretation of provision of the Act, therefore, this Court is fully competent to interpret the Act as well as the effect of any such clarification issued by the F.B.R. Reliance in the case of Engro Elengy Terminal (Pvt) Ltd. v. Federation of Pakistan and others (in Suit No.1084/2015) now reported as 2017 PTD 959, has been placed while deciding the issue of maintainability in addition to the case laws as detailed in para. 11 of the impugned judgment. We have, however, observed that no reasons for entertaining the suits in tax matters, where specific Bar in respect of filing a suit has been provided are recorded by the Hon'ble Judge in the impugned judgment.

22.From careful perusal of the case law relied upon by the learned counsel for the respondents in support of their contention relating to maintainability of suit, particularly, the decisions of the Hon'ble Supreme Court including the cases of (1) Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), (2) Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883), (3) Samiullah and another v. Fazle Malik and another (PLD 1996 SC 827), (4) The State v. Zia-ur-Rahman and others (PLD 1973 SC 49), (5) Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), (6) Muhammad Khan and others v. Province of Punjab and others (2007 SCMR 1169), (7) Abbasia Cooperative Bank (now Punjab Provincial) Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others (PLD 1997 SC 3) and (8) Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), it has been observed that in none of the cited cases, the issue of maintainability of a suit before the learned Single Judge of the High Court on original side, in respect of a dispute relating to determination and assessment of duty and taxes under special taxation laws, including the Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001, or Federal Excise Act, 2005, with particular reference to provisions relating to specific bar from filing a suit as provided under the aforesaid taxing statutes, and the exception in terms of Section 9 of C.P.C. and with further reference to scope of alternate remedy before the specialized appellate forums upto High Courts and to the Hon'ble Supreme Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been taken into consideration. On the contrary, in most of the cited cases, suits were filed in respect of some dispute of civil in nature arising from various enactments, however, excluding special taxation laws, wherein, no hierarchy or appellate forum upto High Court or to the Hon'ble Supreme Court, had been provided for redressal of grievance to an aggrieved party. Whereas, under the Customs Act, 1969, and for that purpose, under Sales Tax Act, 1990, Income Tax Ordinance, 2001, Federal Excise Act, 2005, as well as, under the Sindh Sales Tax on Services Act, 2011, the specialized forums of appeal(s) and reference to the High Court and leave to appeal before the Hon'ble Supreme Court under Article 185(3) of the Constitution, have been provided to an aggrieved party in case of any dispute relating to determination and assessment of duty and tax liability of a person. Therefore, reliance placed by learned counsel for the respondents is misplaced, as the facts of these cases and legal provisions examined in these matters are distinguishable from the cited cases. Similarly, reliance in the reported decisions of Single Benches of this Court on the issue of maintainability by the learned counsel for respondents in these matters is also misconceived, for the reasons that incorrect inferences have been drawn from the decisions of the Hon'ble Supreme Court as referred to hereinabove, for the reason that in none of the cited cases, either the provisions relating to bar of suits in tax matters or the exclusion as provided under Section 9 of Civil Procedure Code, 1908, has been examined or decided with reference to conferment of jurisdiction upon the Court through special enactments i.e. taxing statutes, or under (West Pakistan) Civil Court Ordinance, 1962, duly amended by Sindh Civil Court Ordinance No.XXX of 2002 and by Sindh Civil Courts (Amendment) Act, 2010. As regards reference to reported decisions in the case of Collectorate of Central Excise, Karachi and another v. Syed Muzakkar Hussain and another (2006 PTD 219) and the case of Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse (2004 PTD 1189) by the learned counsel for the respondents, we may observe that the reliance in the aforesaid judgments is also misconceived, as the facts of the instant cases and the legal provisions examined in these matters are distinguishable from the cited case in which, the impugned show-cause notices were without jurisdiction for having been admittedly issued after expiry of the statutory period, whereas, the mala fide on the part of tax authorities and jurisdictional defects in the impugned action and the order was also alleged. Moreover, in the above decisions, there has been no reference to any constitutional provision or the law which could confer jurisdiction upon a Civil Court, including the learned Single Judge of this Court while exercising original civil jurisdiction, to entertain a suit in respect of a dispute relating to determination and assessment of duty and taxes under special taxing statute. We may further observe that in none of the cases of the Hon'ble Supreme Court as referred in the above decisions, the issue regarding maintainability of a suit in respect of a dispute relating to determination and assessment of duty and taxes under a taxing statute, was under consideration, whereas, only the ground of alternate remedy was pressed by the learned counsel for the department. However, in the subject suits, the orders of assessment/re-assessment under Section 80 of the Customs Act, 1969, are in dispute, which orders have been made appealable under Section 193 of the Customs Act, 1969, therefore, the plea taken by the learned counsel for the respondents to the effect that the orders/decisions communicated through WEBOC (computer generating document of the Customs Deptt.) system is not an appealable order, is misconceived in facts and law. Learned counsel for the respondents have not been able to refer to any provision of the Constitution of Islamic Republic of Pakistan, 1973 or Civil Procedure Code, 1908, and for that purpose, the provisions of the Customs Act, 1969, or any other taxing statute, relating to determination and assessment of duty and taxes, whereby, jurisdiction could have been conferred to or exercised by a Civil Court established under (West Pakistan) Civil Court Ordinance, 1962, duly amended by Sindh Civil Courts (Amendment) Act, 2010, including a District Judge or the learned Single Judge of this Court, while sitting on original side, however, exercising the same powers and jurisdiction as of a District Court. We have further observed that learned counsel for the respondents have not been able to establish any mala fide on the part of the Customs Authorities, nor could point out any jurisdictional defect in the impugned decisions/orders passed under Section 80 of the Customs Act, 1969, which could otherwise, provide any justification to abandon and bypass the statutory forums and to file a suit before a learned Single Judge of this Court, while exercising jurisdiction and powers of a civil Court.

23.Admittedly, subject suits were filed in respect of dispute arose between the importers and the customs authorities regarding entitlement to the benefit of exemption of duty and taxes, in terms of above referred SROs and the provisions of Schedule-V of the Customs Act, 1969 and Schedule-VI of the Sales Tax Act, 1990, whereas, the assessment or re-assessment of the goods declaration in terms of Section 80 of the Customs Act, 1969, and the application of the provisions of Customs Act, 1969, and any SRO or Notification issued under the Customs Act, 1969, is the responsibility of the specialized statutory forums provided under the Customs Act, 1969, whereas, in case of any dispute either factual or legal relating to assessment of duty and taxes, appeal before the Collector (Appeals) under Section 193, second appeal before the Customs Appellate Tribunal, under Section 194 of the Customs Act, 1969 as well as a reference to High Court under Section 196 of the Customs Act, 1969, has been provided for determination of a question of law, however, to be heard and decided by a Divisional Bench of this Court in terms of subsection (4) of Section 196 of the Customs Act, 1969. The order passed by the Divisional Bench of this Court can be further assailed by an aggrieved party before the Hon'ble Supreme Court by filing civil petition for leave to appeal in terms of Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973, to finally decide the controversy arising under the Customs Act, 1969. The legislative intent as manifest under various provisions of the Customs Act, 1969 for the purposes of determination and assessment of duty and taxes, providing for the specialized statutory forums of appeal, and reference to this Court on a point of law, which can be finally agitated and decided by the Hon'ble Supreme Court under Article 185(3) of the Constitution, as well as the express bar of Civil Suit provided in terms of section 217 of the Customs Act, 1969, read with provisions of section 9, C.P.C., leads to an irresistible conclusion that any dispute in relation to determination and assessment of liability of duty and taxes, and the orders, passed by the Customs Authorities under Customs Act, 1969, cannot be made subject to a decision by a Civil Court established and constituted in terms of Sindh Civil Courts (Amendment) Act, 2010. Similarly, a learned Single Judge of this Court while sitting on original side at principal seat at Karachi, exercises similar powers and functions as of a District Judge in terms of Section 7 of the Sindh Civil Courts (Amendment) Act, 2010, whereby, original jurisdiction in respect of suits of civil nature, where the value exceeds Rupees 15 Million, has been conferred upon the learned Single Judge High Court at Karachi, however, not in respect of the matters which have been expressly or impliedly excluded by law, particularly, when the High Court or the Hon'ble Supreme Court, itself is repository of the referral and appellate jurisdiction.

24.The issue of maintainability of a suit before a civil court has been examined by the Hon'ble Supreme Court in Civil Petitions Nos.832-K and 833-K of 2011 (Messrs Ghani Tayyeb (Pvt.) Limited Irfan Patel and another v. Federation of Pakistan and others), which were filed against orders dated 19.09.2011 passed by the Divisional Bench of this Court in H.C.As. Nos.13 and 14 of 2010 arising from reported judgment of the learned Single Judge of this Court (presently the Judge of the Hon'ble Supreme Court) in the case of Messrs Ghani Tayyeb (Pvt.) Limited and Irfan Patel and another v. Federation of Pakistan and others (2010 PTD 817), whereby, suit filed in respect of dispute under Customs Act, 1969, was dismissed for being not maintainable. Hon'ble Supreme Court while approving order passed by the learned Single Judge as well as the Divisional Bench of this Court in the High Court Appeals as referred to hereinabove has been pleased to hold as under:--

"3. We have gone through the record carefully and considered the submissions of the learned counsel for the petitioners.

4. The contention raised by the learned counsel for the petitioners may not be without force but this question was to be raised at the relevant time before the Customs Authorities. How could that be raised before a Civil Court is not understandable. Jurisdiction of Civil Court is clearly barred under Section 217 of the Customs Act. The suit thus instituted, in our view, was not competent. Though this point has not been raised in the fora below yet it being a question of jurisdiction cannot be lost sight of.

5. We, therefore, maintain dismissal but on the ground of jurisdiction. These petitions for leave to appeal are dismissed. However, petitioners may, if so advised, approach the competent forum in this behalf for the rederessal of their grievances subject to all just and valid objections."

25.The issue of availability of alternate remedy under taxing statutes and maintainability of a constitution petition has been elaborately decided by the Hon'ble Supreme Court in the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881), wherein, it has been held that:--

" As to bar of jurisdiction, it is to be noted that Article 199 of the Constitution opens with word to the effect that the High Court may exercise its powers under such Articles only "if it is satisfied that no other adequate remedy is provided by law". Adequacy of the alternative remedy, therefore, if there is another remedy available, should always attract the attention of the High Court.

Of such alternative remedies also there are some, which would still leave the jurisdiction of the High Court virtually unaffected, if the order, complained of, is so patently illegal, void or wanting in jurisdiction that any further recourse to or prolong action of the alternative remedy may only be counter-productive and, by invocation of Article 199 the mischief can forthwith be nipped in the bud. In such matters, of course, neither the alternative remedy would be adequate nor bar of jurisdiction in the Sub-Constitutional Legislation may come in the way of the High Court in exercising its Constitutional jurisdiction.

There are other matters, however, where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example, essentially relevant to the first, would be the Service Tribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the Tribunal's decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Court's jurisdiction cannot be taken away e.g. acts which ' are void, without jurisdiction or coram non judice. In such cases of ouster, the High Court would consider it a better-exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax References, Customs Appeals etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the 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 in preference to its own appellate, revisional or referral dispensation arising in course of time. Some discussion on the point is to be found, regarding Income Tax matters and the alternative remedy of a reference, which lies in a High Court under section 136 of the Income Tax Ordinance, 1979, in Yasmeen Lari v. Registrar, Income Tax Appellate Tribunal, 1990 PTD 967. There the Constitutional relief was declined for the sole reason that the alternative of a reference under the suited section of the Ordinance was an equally adequate remedy. As to a more or less similar situation of a some-what conditioned appeal in contemplation of the Banking Tribunals Act, 1984, since supplanted by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the limited extent to which the Constitutional remedy would be addressed, in the face of a very restricted statutory appeal to the High Court reference may conveniently be made to Balochistan Trading Company (Pvt.) Ltd. v. National Bank of Pakistan 1998 SCMR 1989. Relevant to Customs disputes, mention may be made to the comparatively recent development in the way of an amendment, effected through the Finance Act, 1997, introducing section 196 of the Customs Act, 1969, whereby a final appeal has how come to be postulated to lie in the High Court to be heard by a Bench of not less than two Judges. The outcome is obvious namely, that, following upon the amendment, the High Court shall be ever more circumspect in directly entertaining Constitutional Petitions touching outcome controversies and, instead, prefer its own normal appellate jurisdiction to be invoked in due course. As regards the appeals and revisions contemplated by and under the Codes of Civil and Criminal Procedure there is a plethora of precedent, contemplating that the High Court, itself being the Court of final resort under such statutes, should be extremely slow in allowing its own general jurisdiction to be sidetracked and rendered ineffective in matter over-stretched be tackled on the Constitutional plane."

26.Reliance in this regard can also be placed in the case of Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842), wherein, Full Bench of the Supreme Court headed by the Hon'ble Chief Justice of Pakistan, while examining the issue of alternate remedy and maintainability of constitutional petition in respect of a dispute relating to interpretation and application of SRO issued under Customs Act, 1969, has been pleased to hold as under:-

"4. Before examining the merits of the case, we find it necessary to state that at the stage when regulatory duty was charged, the appellant ought to have challenged the same before the forum provided under the Customs Act. Instead of doing that, the appellant invoked the jurisdiction of the High Court under Article 199(1) of the Constitution of Pakistan. Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over-burdened with a very large number of such cases. This in turn results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates. We would have relegated the appellant to seek remedy before the appropriate forum, however, as the dispute in the present case is now more than twenty years old, we for this reason only as matter of indulgence, proceed to decide the controversy on its merits."

27.Similar view has been approved by the Full Bench of the Supreme Court headed by the Hon'ble Chief Justice of Pakistan, regarding maintainability of a constitutional petition, in view of availability of alternate remedy, in a recent judgment dated 14.03.2017 passed in Civil Appeal No.36/2006 (ICI Pakistan Limited v. Federation of Pakistan etc.), wherein it has been held as under:--

"12. This Court in a number of cases has taken the view that mere issuance of notice does not ordinarily furnish sufficient cause for invoking constitutional jurisdiction of the Courts instead of submission of replies to such notices, waiting for decisions of the departmental authorities and then if necessary following further statutory remedies. This is of course subject to exceptions in appropriate cases where such notices are found to be mala fide, patently illegal, issued without jurisdiction. In the facts and circumstances of the present case, we are not persuaded to hold at this stage, on the basis of material available before us, that the impugned notice is ex facie mala fide, without jurisdiction or issued illegally. Hence the learned High Court was justified in refusing to exercise its extraordinary constitutional jurisdiction which is discretionary in nature."

28.In the instant High Court Appeals, we have examined precise legal issue as to whether in view of specific bar of filing a suit, provided under the special taxing statutes and the exclusion of jurisdiction of civil court to try a suit of which cognizance is either expressly or impliedly barred in terms of section 9 of Civil Procedure Code, 1908, any dispute relating to determination and assessment of duty and taxes arising from special taxing statutes like Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005, as well as, under the Sindh Sales Tax on Services Act, 2011, wherein, the legislature has provided specialized forums and authorities for the purposes of determination and assessment of duty and taxes, and in case of any dispute specialized appellate forums as well as referral jurisdiction of the High Court and the appellate jurisdiction of the Hon'ble Supreme Court, have also been provided for resolution of such dispute, the jurisdiction of a civil court including the Court of learned Single Judge of this High Court while exercising its original civil jurisdiction, can be invoked by filing a suit or not. From perusal of the impugned judgment(s) and decree(s) passed in the instant matters as well as the decisions as relied upon by the learned counsel for the respondents in this regard, it appears that in none of the cases the above aspect of the matter has been examined nor any decision in this regard has been made. On the contrary, in view of above referred decisions of the Hon'ble Supreme Court as relied upon by learned counsel for appellants on the subject controversy, it appears that issue of maintainability of suit has been decided in favour of the appellants and against the respondents.

29.In view of hereinabove facts and circumstances of the case and the legal position, which has emerged from perusal of the relevant legal provisions and the ratio of the judgments of the Hon'ble Supreme Court as referred to hereinabove on the subject legal issue, we are of the considered opinion that suits filed by the respondents before the learned single Judge(s) of this Court at original side, exercising original civil jurisdiction are not maintainable for the following reasons:-

(i)In view of specific bar provided in terms of Section 217 of the Customs Act, 1969 and the exclusion of jurisdiction of Civil Courts in terms of Section 9 of the Civil Procedure Code, 1908, any dispute relating to determination and assessment of duty and taxes under Customs Act, 1969 or Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005, as well as a dispute under the Sindh Sales Tax on Services Act, 2011, cannot be agitated by filing a suit before a Civil Court or learned Single Judge of this Court while exercising original civil jurisdiction, therefore, impugned judgment(s) and decree(s) are hereby set-aside and instant High Court Appeals are allowed.

(ii)A Civil Court constituted under (West Pakistan) Civil Courts Ordinance, 1962 duly amended by Sindh Civil Court (Amend-ment) Ordinance, 2002 and Sindh Civil Court (Amendment) Act, 2010, has not been conferred with any jurisdiction under the Constitution or any other law to entertain or decide a dispute relating to determination and assessment of duty and taxes under special taxation laws including Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005, as well as under the Sindh Sales Tax on Services Act, 2011, therefore, cannot be treated as a Civil Court of ultimate jurisdiction for the purposes of deciding any controversy arising or relatable to the aforesaid taxing statutes. Accordingly, assumption of jurisdiction by a civil court including the Court of learned single Judge of High Court in the instant matters, while exercising original civil jurisdiction, is without lawful authority, hence the impugned judgment(s) and decree(s) are hereby set-aside, and the instant High Court Appeals are allowed.

30.Before parting with the judgment, we may clarify that this bar of jurisdiction is only in respect of entertaining a suit by Civil Courts, including the learned single Judge of this Court while exercising original civil jurisdiction under Section 7 of the (West Pakistan) Civil Courts Ordinance, 1962 duly amended by Sindh Civil Court (Amendment) Ordinance, 2002 and Sindh Civil Court (Amendment) Act, 2010, whereas, a Divisional Bench of the High Court can exercise jurisdiction in respect of disputes arising or relatable to special laws of taxation under its reference jurisdiction as conferred by law under Section 217 of the Customs Act, 1969, Section 51 of the Sales Tax Act, 1990, Section 227 of the Income Tax Ordinance, 2001 and Section 41 of the Federal Excise Act, 2005, under lawful instituted proceedings, and also in appropriate cases, under its extra ordinary constitutional jurisdiction under Article 199 of the Constitution, provided an aggrieved party can demonstrate some jurisdictional defect, violation of express provision of law or principle of Natural justice by a public functionary, and in cases, where the vires of any enactment, Rules, Regulations, or Notification/SRO, has been brought under challenge. However, above jurisdiction is discretionary in nature, which can be exercised by Divisional Bench, and not by a learned Single Judge of this Court, while sitting at original side and exercising powers and functions of a Civil Court.

MH/C-15/Sindh Appeal allowed.