2021 PLP 181 (PTD)

JAWAD HASSAN, J.

Through the instant Constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged order dated 30.09.2020 passed by the Respondent No.3.

2. The case of the Petitioner is that he paid duty/taxes as per calculation of the Respondents however, goods are not being released to him. It is also his case that the goods and container are not the part of recovery memo. however, the Respondents linked it with adjudication proceedings and caused material irregularities while passing impugned order.

3. Learned legal advisor of the Respondents objected to maintainability of the petition on the ground that against the impugned order, the Petitioner has remedy of appeal before the Collector (Appeals).

4. Heard. Record perused.

5. It evinces from the record that the Petitioner earlier approached this Court with the request to issue directions to the Respondents to decide his representation dated 20.08.2020. Pursuant to aforesaid directions, the Respondent No.3 passed the impugned order. Relevant portion of the said order is reproduced hereunder: "The weight of the container at the time of entry into the Dry port was 25990 Kgs while during course of investigation the weight of the container in question was again carried out at Sialkot Dry port Weighbridge S. No.14587 dated 27.08.2020 and it was found to be 24450 Kgs which was 1540 Kgs short. An FIR No.03/2020 was lodged against the Respondent, his clearing agent and others. A show-cause notice was issued by the Deputy Collector Customs (Adjudication) dated 15.09.2020. The next date of hearing in the show-cause notice by the adjudication authority has been fixed for 01.10.2020 and in the FIR 03/2020, the next date of hearing has been fixed for 02.10.2020. Since both the cases are subjudice at legal for a, therefore, the Respondent is directed to approach the relevant legal fora for redressal of his grievance".

6. From the reading of above order, it is obvious that the Petitioner has been directed to approach the relevant forum for redressal of his grievance. It is noted that a specific remedy is available to the Petitioner under Section 193 of the Customs Act, 1969 (the "Act") which the Petitioner has not availed rather instituted this petition. Section 193 of the Act specifically deals with the issue which, for the sake of brevity, is reproduced below and is as follows:

193. Appeals to Collector (Appeals).- (1) Any person [other than] an officer of customs aggrieved by any decision or order passed under [sections 79, 80 and 179 of this Act by an officer of customs not below the rank of an Assistant Collector] may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order: (Underline is mine)

7. From the bare reading of the above-said section it is very much clear that a person aggrieved from the decision passed by the Assistant Collector has a right to prefer appeal before the Collector (Appeals). In this view of the matter, the Petitioner has the alternate remedy before the Collector (Appeals). While dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as "Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others" (2016 SCMR 842), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813) and "Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others" (PLD 2010 SC 969) has held that in the wake of availability of an alternate efficacious remedy, jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.

8. From the above, it can safely be held that this Court is bound to exercise its extra ordinary Constitutional jurisdiction where no other adequate remedy is provided by law but in the present case alternate remedy by filing an Appeal before the Collector (Appeals) is available to the Petitioner, therefore, this petition is not maintainable, hence dismissed in limine. SA/M-167/L Petition dismissed.