2005 PLP 1489 (PTD)

I intend to decide the following writ petitions by one consolidated order having similar facts and law:-- (1) W.P. No.13198-2004, (2) W.P. No. 13167-2004 (3) W.P. No.13168-2004, (4) W.P. No. 13169-2004, (5) W.P. No.13170-2004, (6), W.P. No. 13171-2004, (7) W.P. No.13172-2004, (8) W.P. No. 13173-2004, (9) W.P. No.13174-2004, (10) W.P. No. 13175-2004, (11) W.P. No.13176-2004, (12), W.P. No.13177-2004, (13) W.P. No.13178-2004, (14) W.P. No. 13179-2004, (15) W.P. No.13180-2004, (16) W.P. No. 13181-2004, (17) W.P. No.13182-2004, (18) W.P. No. 13183-2004, (19) W.P. No.13184-2004, (20) W.P. No. 13185-2004, (21) W.P. No.13186-2004, (22) W.P. No. 13187-2004, (23) W.P. No.13188-2004, (24) W.P. No. 13189-2004, (25) W.P. No.13190-2004, (26) W.P. No. 13191-2004, (27) W.P. No.13192-2004, (28) W.P. No. 13193-2004, (29) W.P. No.13194-2004, (30) W.P. No. 13195-2004, (31) W.P. No.13196-2004, (32) W.P. No. 13197-2004, (33) W.P. No.13199-2004, (34) W.P. No. 13200-2004, (35) W.P. No.13201-2004 (36) W.P. No. 13202-2004, (37) W.P. No.13203-2004, (38) W.P. No. 13204-2004, (39) W.P. No.13205-2004, (40) W.P.No. 13206-2004, (41) W.P. No.13207-2004, (42) W.P. No. 13208-2004, (43) W.P. No.13209-2004, (44) W.P. No. 13210-2004, (45) W.P. No.13211-2004, (46) W.P. No.13212-2004 and (47) W.P. No.13213-2004.

2. The petitioners have challenged the vires of impugned show-cause notices through these Constitutional petitions.

3. The learned counsel of the petitioners submits that the respondent basically issued notices to the petitioners on the basis of Circular, dated 12-1-1999 which has been declared to be without lawful authority by this Court vide judgment, dated 5-4-2000 passed in W.P. No.4319-2000. He further submits that the impugned proceedings have been initiated against the petitioners with mala fide intention by the respondents simply to earn rewards under the Notification, dated 26-6-2002, which was issued by the competent authority under the provisions of Customs Act, 1969 and order, dated 25-11-1984 issued by the Federal Government under Central Excise and Sales Taxes and other relevant law.

4. The learned counsel of respondents entered appearance on Court's call, he submits that these Constitutional petitions are not maintainable, as the petitioners have challenged the vires of show-cause notices in the Constitutional petitions. He further submits that each and every case is to be decided on its own peculiar circumstances and facts, therefore, unreported judgment, dated 5-4-2000 relied by the learned counsel of the petitioners passed in W.P. No.4319-2000 is not applicable in these cases, having distinguished facts. He further submits that the general allegation of malice is not sustainable in the eye of law. He further submits that the petitioners have approached this Court with unclean hands as the petitioners want to get the benefit of their own misdeed.

5. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce the operative part of show-cause notice and operative part of judgment, dated 5-4-2000 passed in W.P. No.4319-2000 to resolve the controversy between the parties:-- Operative part of show-cause notice. "During the course of audit, it was also observed that the importer and clearing agents fraudulently and dishonestly got their goods (second hand machinery), cleared from the Customs Dryport, Faisalabad by grossly under-invoicing and getting assessed the imported goods on much lower value whereas the said goods to be assessed @ US$ 1 (equal to Rs.60) per K.G. at the minimum as per Customs House. Karachi's Circular No.Reg/SI/MISC/730/92-IV, dated 12-1-1999. The importer has thus fraudulently caused huge loss to Government Exchequer through evasion of duty/taxes by submitting false and forged documents." Operative part of judgment, dated 5-4-2000. "In view of the above, this petition is allowed, letter issued by the Collector of Customs, Karachi on 12-1-1999 is declared to be without lawful authority of no legal effect. The Customs Authorities shall proceed to fix the duty in accordance with Customs General Order No.22 of 1983 and section 25 of the Customs Act." In case, the judgment of this Court and impugned show-cause notices are put in juxta-position, then it is crystal clear that Additional Collector has issued impugned notice, dated 5-8-2004 without application of mind, which is condition precedent. After addition of section 24-A in the General Clauses Act, the public functionaries must have passed the order after application of mind within reasonable time and with reasons, which is also envisaged by Article 4 of the Constitution as per principle laid down by the Honourable Supreme Court in Messrs Airport Support Service's case (1998 SCMR 2268). It is also settled principle of law that no body should be penalized by inaction of public functionaries, as per principle laid down by this Court in Ahmad Latif Qureshi's case (PLD 1994 Lah. 3). As mentioned above, the impugned show-cause notices were issued by the respondents on the basis of letter, dated 12-1-1999, which have been set aside and declared by this Court without lawful authority in judgment, dated 5-4-2000 passed in W.P. No.4319-2000.

7. In view of what has been discussed above, the impugned show-cause notices are set aside on the technical ground i.e. show-cause notices were issued on the basis of letter, dated 12-1-1999, which has already been declared without lawful authority by this Court, therefore, the respondents are at liberty to proceed against the petitioners in accordance with law, except the said letter, dated 12-1-1999. In case, the respondents failed to challenge the judgment of this Court, dated 5-4-2000 passed in W.P. No. 4319-2000 before any higher forum. In case, judgment of this Court is in the field, then the respondents have no lawful authority to proceed against the petitioners on the basis of letter, dated 12-1-1999, which has been declared without lawful authority by this Court, as the judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. The respondents have no lawful authority to proceed against the petitioners on the basis of letter, dated 12-1-1999. With these observations, these writ petitions are disposed of. H.B.T./N-27/L Order accordingly.