1989 PLP 2246 (CLC)

TANZIL‑UR‑REHMAN, J.‑‑By this petition filed under Artile 9 the Provisional Constitutional Order, 1981, it is prayed as under:‑ "The petitioner, therefore, humbly prays that this Hon'ble Court may be pleased to declare that Mach Splicer Full Automatic Winders imported from Japan by the petitioner for its Textile Industry under the B.M.R.Scheme are exempt from the whole of customs duty leviable ail thereon and the refusal of the Respondent No.1 from releasing the consignment imported by the petitioner under Bill of Entry IGM No.1084/83 dated 11‑5‑1983, Index No.l7, dated 12‑5‑1983 ex s. Bolan free of duty is illegal, without jurisdiction and without lawful authority. The petitioner further prays that it may also be declared that the denial of Respondent No.2 in issuing a certificate of exemption, as per Annexure P‑13, is also illegal and without jurisdiction." Mr. Khurshid Anwar Shaikh, learned counsel for the petitioner submits that the petitioner imported Automatic Winder known as MACH SPLICER which is distinct from Auto Cone Winder inasmuch as the broken ends are spliced and not knotted by the said machinery, which is not manufactured in the country, and therefore, exemption from paying customs duty cannot be denied to the petitioner. On the other hand, Mr. Hussain Adil Khatri, learned standing counsel for the respondent submits that the question whether machinery falls under the relevant S.R.O. so as to entitle the petitioner to exemption from customs duty lies within the exclusive domain of Customs Authorities. He further submits that for obtaining exemption the petitioner applied to the Textile Commissioner. A Scrutinizing Committee was formed for the purpose and it gave its opinion that the machinery imported by the petitioner Company, is a substitute for locally manufactured cone‑winder and shall not be entitled to concession under S.R.O. (702)/1/80 dated 26‑6‑1980. It was so stated by its letter, dated 17th May, 1983 Annexure `P‑3', that: "Textile Machinery Corporation of Pakistan Limited is also manufacturing automatic cone‑winder which is being supplied to many textile mills." Reliance is placed by Mr. Khatri on the case of Naveed Textile Mills Ltd. v. Assistant Collector (Appraising) Customs House, Karachi and others PLD 1985 SC

92. We respectfully follow the observations of the Hon'ble Supreme Court in the case referred to above. It seems advantageous to reproduce the relevant paragraph of the said judgment, which reads as under:‑ "A second look at explanation (ii) will show that the expression `being a substitute' is a statement of fact, inferential in nature and unqualified in content, not open to question or contest. It is supposed to provide a rational basis for the differential treatment extended to imported cone winders. This statement of fact, or disclosure of a reason partakes of a decision on a policy matter, a motivation for the legislative measure, a regulatory control exercised by the delegator over the statutory functionary receiving such a power by delegation. These are all permissible controls. It is admitted that in granting exemption or in revoking it, no jurisdictional fact is required to be satisfied or disclosed by the Government. Where such is the amplitude of power enjoyed the disclosure of a reason, the statement of a fact, or the narration of an event, will not throw in jeopardy the power exercised, only because, the reason, the fact or the event does not or cannot stand the strict test of accuracy. Any factual enquiry in their domain, not being an inquiry concerning jurisdictional fact, will be altogether outside the scope of proceedings conducted in Constitutional jurisdiction." The question whether the machinery imported is or is not automatic cone‑winder or its substitute is a pure question of fact and the factual inquiry to that effect lies in exclusive domain of the Customs Authorities. The case before us does not involve the inquiry concerning jurisdictional fact and, therefore, the matter is outside the scope of the powers exercisable by this Court under its Constitutional jurisdiction. Mr. Khurshid, however, submits that the matter may be remanded with a direction to the Textile Commissioner to re‑examine the case of the petitioner in the light of Annexures `P/1'. `P/2' and `P/3'. These annexures seem to be printed literature relating to the machinery allegedly imported by the petitioner. We do not feel inclined to accede to the request of the learned counsel as the machinery has been released, installed, used and it is not known whether it exists in the shape, it was imported and furthermore it was open to the learned counsel to have produced the same in the first instance, while making an application and claming exemption of the customs duty. On being questioned by us, whether the said material was placed by the petitioner before the Textile Commissioner or Scrutinising Committee, Mr. Khurshid candidly submitted that he is not in a position to answer this question, if the petitioner submitted the said! material or not. For the aforesaid reasons, the petition is dismissed but in the circumstances there will be no order as to costs. A.A./134‑A/K Petition dismissed.