1975 PLP 76 (SCMR)

MUHAMMAD YAQUB ALI, J.‑On the 29111 August 1973, the petitioner filed Writ Petition No. 915 of 1973 in the High Court of Sind & Baluchistan with the prayer that the certificate issued by the Collector of Central Excise and Land Customs, Karachi, on 2?rd of July, 1973, for recovery of Rs. 95,280 from him as land revenue be quashed as without lawful authority and that the proceedings initiated by the City Deputy Collector, Karachi, for recovery in pursuance to the impugned certificate may be quashed as void and illegal. The prayer in the writ petition proceeded on the averment that the petitioner was taken by surprise by the action of the city Deputy Collector karachi and asked for inspection of the case file and grant of certified copies of the relevant documents On the 23rd August 1973 the Assistant Collector Central Excise and Land Customs Karachi made available to the petitioner a coy of the adjudication order which was prepared from and unsigned copy dated 29-5-1973 and a copy of the certificate for the realization of excise duty from the petitioner bearing the date 23rd July 1973. In the next succeeding paragraph of the petition it was asserted that no order of adjudication exists at all in pursuance wherof the respondent nNo.2 has initiated recovery proceedings against the petitioner for realizaion to the amount of Rs 97,1785. The inquiry proceedings are therefore wholly illegal ultra vires arbitrary and without jurisdiction. In the parawise comments submitted by the Superintendent, Central Excise, Circle 'B', Karachi, it was stated that the petitioner was manufactur ing plastic goods without licence, search of the premise, of Sami Engineering Works, Lawrence Road, Karachi, was made on 24th July 1969, which revealed that P V C Water Stoppers of the value of Rs. 75,185 were manufactured by the petitioner without the authority of the Central Excise Department whereupon a notice was issued to him under registered A. D. cover on 19‑9‑1969 by which he was required to show cause within 10 days of the receipt of the notice as to why action should not be taken against him under Rules 210 and 226 of the Central Excise Rules, 1944, In response to the notice the petitioner requested for extension of time by letter dated 30th September 1969, which was diarised in the office of the Collector at Serial No. 2512 on 2‑10‑1969. The prayer was allowed and intimation was sent to the petitioner at Sami Engineering Works, Lawrence Road, Karachi, under registered letter despatched on 20‑10‑1969 vide Serial No. 8123 of the Register of Issue. The reply to show‑cause notice was received on the 16th October 1969, and was entered in the Daily Register on the same day at Serial No. 2625. Thereafter the adjudicaton order was passed by the Collector, Central Excise and Land Customs on 24‑11‑1970. A copy of the order was sent to the petitioner on 28‑i1‑1970 by registered A. D. cover at his Lawrence Road address. The despatch of the copy is entered at serial No. 8609 dated 28‑11‑1970 in the same register. As the petitioner did not pay the duty and the penalty imposed on him demand notices were issued to him from time to time. On 31‑5‑1972 the Superintendent, Central Excise and Land Customs, Circle 'B', issued a registered A. D. letter at. his Lawrence Road address which was duly received by one Mohammad Ahmad on behalf of the petitioner. As the dues were not cleared another registered letter was sent to the petitioner on the same address on 7‑9‑1972 which was returned by the Postal authorities wits: a report that the addressee had refused to accept it. Thereafter action under section 11 of the Central Excises and Salt Act, 1944, was taken and the Revenue collecting authorities were requested to recover the Government; dues as arrears of land revenue. In reply to the averment made by the petitioner that the order of adjudication on the basis of which certificate of recovery was issued was fake it was stated in the para wise comments: "With regard to para. 5 it is submitted that a show‑cause notice was issued to the petitioner vide despatch No. 7162 dated 19‑9‑1969. It was sent under registered A. D. cover at his Lawrence Road address, and his reply dared 15‑10‑1969 was received in this Office on 16‑10‑1969 and the case was adjudicated on 24‑10‑1970 and a copy of the adjudication order was sent to him under registered cover on 28‑11‑1370. As such i e way: duly supplied :ill the relevant copies much before and his demand of the copies at such a belated stage was not justifiable, It is therefore evident f6at he managed the removal of the case papers arid the allied records from the different offices of this department and then applied for furnishing copies. However, the advance information report. seizure report, copy of Mashirnama, copies of the statements of the witnesses and of the petitioner and the statement of S. A. Qaiser, the office copy of the show‑cause notice and the approved draft of the adjudication order as well as the copy marked to the Assistant Collector C E & I C (Accounts) have been traced out and are available for production if necessary. It is pertinent to mention here that on receipt of the show‑cause notice the petitioner has applied for the extension of time for submission of the reply to the show‑cause notice which was allowed vide this office letter No. 16/42‑CE/69 dated i0‑10‑1969 copy of which is annexed and marked R/5. Thereafter the petitioner applied to the Superintendent C E & I C Circle 'B', Karachi, for the grant of the copies of the correspondence for production before the Collector, C E & I C, Karachi, in support of the case and deposited Rs. 25 in the State Bank of Pakistan vide T. C No. 36, dated 26‑1‑1970 as the copying fee. Copy of his letter dated 25‑2‑1970 is annexed and marked R/6. This letter clearly proves that he was in know of the case against him and that he had demanded and obtained copies of the correspondence that had taken place between the Superintendent and the petitioners firm M/s Building Plastic Ltd., for production before the Collector for ;clarifying his position in response to the show‑cause notice." The parawise comments concluded with the statement that the petitioner having been served with a show‑cause notice and heard in person was not entitled to invoke the constitutional jurisdiction of the High Court to challenge the impugned order dated 24‑10‑1970 more particularly when he had the right of appeal to the Central Board of Revenue which he had not exercised. Since the facts set out in the writ petition and the reply made by the Department were at great variance the learned Judges in the High Court observed "In view of the controversy raised in the present case it will be necessary to make an investigation into controversial facts as to whether the proceedings were taken against the petitioner pursuant to show‑cause notice dated 19‑9‑1969 and whether he appeared and was heard in the case by the Collector of Central Excise & Land Customs, Karachi. The impugned order dated 24‑i0‑1970, is to the effect that a show- cause notice was issued to him under office No. 16/42‑CE/69 dated 19‑6‑1969 to which reply was received from him vide his letter dated 15‑10‑1969." To resolve this controversy the learned Judges reproduced the order of adjudication passed by the Collector dated 24‑10‑1970 and observed that the entries recorded in the departmental registers supported the assertion that the Collector had heard the petitioner after service of show‑cause notice and passed the order after that. On reaching this conclusion the learned Judges observed: "If the impugned order was passed on these facts and circumstances then, there is no ground whatever for interference by this Court in its constitutional jurisdiction. It is also not the function of this Court in exercise or its constitutional jurisdiction to conduct a sort of full fledged investigation or enquiry that will have to be conducted if the contentions raised by petitioner are to be examined. The statute under which the impugned order has been passed makes it permissible to the petitioner to challenge the order in an appeal or revision application on the grounds raised by him in this petition. We, therefore, find no valid justification for exercise of constitutional jurisdiction of this Court in this case." In the result the petition was dismissed. Aggrieved by the order of the High Court the petitioner seeks leave to appeal reiterating the pleas that there was no order of adjudication and that the recovery proceedings initiated against him were mala fide. On 19‑12‑1973 the petitioner obtained an interim stay order that the recovery, proceedings shall remain in abeyance on furnishing security to the satisfaction of the Registrar of the High Court. A similar stay order was earlier obtained by the petitioner in the High Court with the result that the recovery proceedings have remained stayed all along. When this matter first came up in motion before us, we considered it very odd that without any rhyme or reason the Departmental authorities should go to the length of fabricating an order of adjudication and take steps to recover a large sum of Rs. 97,185 from the petitioner or that recovery proceedings were ordered under section 11 of the Central Excise & Salt Act without there being in existence a proper adjudication order. We accord ingly, sent for the record which was made available by the Departmental Representative. It appears that certain documents pertaining to the petitioner's case disappeared from the record of the Collector, Excise & Land Custom, and the petitioner wanted to take advantage of this circumstance. However, some material documents are available, such as, the report by Mr. Mushtaq Ahmad, Inspector Preventive, dated 7‑8‑1969 that the petitioner was manu facturing plastic goods under the name "Building Plastic Company" on Plot No. 24/3, Drigh Road, Karachi, without obtaining licence and paying excise duty; the statement of the petitioner and his partner S. A. Qadeer was recorded on 25‑7‑1969; the seizure report dated 24‑7‑1969, summary of bills contained in File No. BP/F/8 of M/s. Building Plastic Limited showing sale of plastic goods of the value of Rs. 1,44,167.75 between 22‑4‑1969 and 28‑7‑1969; office copies of the show‑cause notices issued to the petitioner, entries in Register of Issues & Receipt Diary evidencing despatch of the notices and the replies sent by the petitioner. There are other supporting documents including the original adjudication order dated 24‑10‑1970 signed by the Collector. These documents fully bring out that the pleas raised by the petitioner in the writ petition filed by him in the High Court and the petition for special leave to appeal instituted in this Court to the effect that he was not aware of any proceedings in which the adjudication order dated 24‑10‑1970 was passed were to his knowledge utterly false. Consequent upon these false representations he has succeeded in obtaining a stay order from the High Court and an interim stay from this Court' In doing so he has been prima facie guilty of abusing the process of the High Court as well as this Court. We, accordingly, dismiss the petition for special leave to appeal as it is based on false averments and direct that a notice shall issue to the petitioner to show cause as to why he should not be suitably punished for contempt of Court. Petition dismissed.