2002 PLP 233 (CLC)

‑‑‑‑Question of estoppel would not arise against the law. Nauman Akram Raja for Appellant. Jawaher A. Naqvi for Respondents. We intend to decide the following Intra‑Court Appeals by a single judgment having similar question of facts and law: Intra‑Court Appeal No.552 of 2002 and Intra‑Court Appeal No.551 of 2000.

2. The brief facts out of which these appeals arise are that the appellants filed Constitutional Petition No.28300 of 1997 and Writ Petition No.21954 of 1997 with the following prayer:‑‑ "Wherefore , it is respectfully prayed that the respondents Nos.1 and 2 may be restrained from attempting to withdraw or amend the concessions granted under the second phase of the Awami Tractor Scheme insofar as they relate to the import of 2,000 tractors by the petitioner as per authorization granted to the petitioner under S.R.O. No.92(1)/94. It is further prayed that the respondents Nos. l and 2 may be directed not to impose any further Customs Duty, Sales Tax, Regulatory Duty, Service Charge and any other tax or duty on the 2,000 tractors being imported by the petitioner in the public interest. Any other relief which this Honourable Court may find just and necessary may also be granted. The learned Single Judge dismissed the writ petitions in view of the law laid down by the Honourable Supreme. Court in the case of Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Facto Belarus Tractors Limited 2000 SCMR

112. The appellant being aggrieved filed this Intra‑Court Appeal.

2. The learned counsel of the appellant submits that the Honourable Supreme Court has set aside the aforesaid judgment in Review Petition No.80 of 1999. He further submits that judgment of the learned Single Judge is not sustainable in the eyes of law in view of the subsequent events as the impugned notification was set aside by the Honourable Supreme Court. He further submits that the appellant being aggrieved filed the Intra‑Court Appeals within prescribed period.

3. The learned counsel of the respondents submits that Intra‑Court Appeals are not maintainable as the appellants have a right of appeal/revision against the Notification under the provision of the Customs Act, 1969. He further submits that the appeals are liable to be dismissed as time‑barred as the appellants did not file the Intra‑Court Appeals within the prescribed period. He further submits that impugned orders of the learned Single Judge are consenting orders, therefore, the Intra‑Court Appeals are not maintainable against the consenting orders. He further submits that the subsequent judgment of the Honourable Supreme Court is not applicable in the case of the appellants as the judgment of the Honourable Supreme Court has perspective effect and not retrospective effect. He further submits that appellants are not entitled to get benefit of the subsequent judgment of the Supreme Court in view of the law laid down by the Honourable Supreme Court in Pir Bakhsh's case PLD 1987 SC

145. He further submits that appellants have to file review applications before the learned Single Judge.

4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves.

5. It is admitted fact that question of estoppel does not arise against the law. The learned Single Judge dismissed the writ petition in view of the law laid down by the Honourable Supreme Court ‑in the case of Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Facto Balarus Tractors Limited 2000 SCMR

112. The same was subsequently set aside by the Supreme Court in review petition, therefore, judgment of the learned Single Judge is not in accordance with law laid down by the Honourable Supreme Court in the review petition. It is also admitted fact that appellants did not challenge any departmental order, therefore, the appellants, have no right of appeal/revision under the provisions of the Customs Act, 1969, therefore, the Intra‑Court Appeals are maintainable. The bar contained in proviso of section 3 of Law Reforms Ordinance, 1972 is not attracted in the present C cases. The judgment cited by the learned counsel of the respondent of Pir Bakhsh's case aforesaid PLD 1987 SC 145 is also not attracted. The appellants had filed the Intra‑Court Appeals against the impugned orders whereas in Pir Bakhsh's case the writ petition was not filed after the remand order by the order of the Deputy Settlement Commissioner, therefore, judgment of Pir Bakhsh's case is not attracted in these cases. Similarly, the appellants have filed applications for obtaining certified copies of the impugned orders after receiving the certified copies of the order which was attached with the memorandum of the appeals, the appellant have filed the present Intra‑Court Appeals which are within time. In view of what has been discussed above, these Intra‑Court Appeals are accepted in view of the judgment passed by Honourable Supreme Court in Review Petition No.80' of 1999 with no order as to costs. H.B.T./M‑791/L Appeals accepted.