2000 PLP 661 (CLC)

"However, before claiming the benefit of exemption, the conditions laid down in the exemption granting notification. the petitioners have to satisfy the respondents that their claim strictly falls within the purview of the exemption granting notification." Therefore, now the petitioner should secure the copies of individual orders and challenge the same in appeal. The writ petition is not competent. Moreover, the petitioner is raising self‑contradictory pleas. If the S.R.O. 444 of 1996 has not been discussed by the Honourable Supreme Court in the judgment of Ravi Spinning Ltd. and others (supra), so is the position of the judgment of High Court. This renders the argument without merit.

10. This is not all. Mr. A. Karim Malik, Advocate has rightly pointed out with reference to para. 2 of the writ petition that the petitioner has pleaded that the goods imported by it were covered by S.R.Os. 487, 508, 444 and 555, dated 14‑6‑1995, 13‑6‑1996 and 12‑6‑1998 respectively and not only by S.R.O. 444 as argued by the learned counsel for the petitioner. This is not the end of the controversy. The learned counsel for the petitioner categorically argued that the petitioner has not referred to L.Cs. and Bill of Entry because the petitioner is seeking a declaration to the effect that letter, dated 22nd of June, 1999 was without lawful authority. The judgment of the Honourable Supreme Court was binding on all in view of the Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and I am afraid that this Court cannot read judicate upon this issue once again while the Department was under legal obligation to decide the individual cases in the light of the rule laid down by the Honourable Supreme Court in the case o Ravi Spinning Ltd. And others (supra). Moreover, through Letter Department had based its demand on the orders passed in individual cases. Therefore, so long assessments were not set aside the amount demand be declared illegal.

11. The judgment declared only the legal position, therefore, it was not a ' judgment in personam'. It was in nature of 'judgment in rem'. The 'judgment in personam' is in. short a declaration to one's rights personal and to property which would cover contract, title, property and marriage. He, with reference to case of Pir Bakhsh (supra), heavily relied by the learned counsel for the petitioner, argued that this rule is not inflexible and is not attracted in criminal, fiscal and Constitutional matters. The relevant portion reads as under:‑‑‑ "There is a distinction in what a case decides generally and as against all the world from what it decides between the parties themselves. Salmond 'on Jurisprudence', Twelfth Edition, at page 175, brings out this distinction in these words:‑‑ 'What it decides generally is the ratio decidendi or rule of law for d which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle three matters are now res judicata between them and cannot be the subject of further dispute. But the Court's finding will not be conclusive except as between the same parties ...Third parties not .involved in the original case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party'. Elaborating further, it is the policy of the Courts to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine. of rule of stare decisis. This‑ rationale behind this policy is the need to promote certainty, stability, and predictability of the law. This, however, does not mean that this rule is inflexible. In this context, it will be of advantage to sum up what Hamoodur Rahman, C.J., in the case reported as Asma Jilani v. Government of the Punjab PLD 1972 SC 139, said‑‑‑ 'I am not unmindful of the importance of this doctrine but in spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedent' .... It will, thus, be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and Constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule." Even the House of Lords has modified its present practice of giving strict adherence to its precedents. In this connection I would here refer to a Note published at page 77 in the case reported as Lloyds Bank Ltd. v. Dawson and others (1966) 3 Ail ER 77, which reads:‑‑‑ . "Before judgments were given in the House of Lords on July. 26, 1996, Lord Gardner,. L.C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary:‑‑‑ Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at' least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in min the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. " There are, therefore, exceptions to the rigid adherence to this rule, and I am of the view that this Court being the Court of ultimate jurisdiction has power . to review its own judgments. This doctrine should not be confused with res judicata which rests on a different principle. In American Jurisprudence 2nd, Volume 20, at page 521, they,,':, distinction between these two concepts is brought out in these words:‑‑ "While res judicata applies only when the same parties. or their privies, are involved in the subsequent case as were involved in the prior case, the applicability of stare decisis is not affected by the fact . that different parties are involved in the case where the precedent was established. Res judicata applies to decision of both law and facts. Stare decisis, on the other hand, is applicable only on questions of law. Res judicata is a rule of law that must be applied even where the decision binding as res judicata was erroneous,' whereas stare decisis is a judicial policy in which a certain flexibility is inherent, and which, therefore, does' not prevent a Court from overruling its prior decision if, upon re‑examination . thereof, it is convinced that the decision was erroneous. It has also" been pointed out, as a difference between res judicata and stare decisis, that stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication which resulted therefrom, whereas res judicata is based upon the adjudication. " Thus, in a given case, it is the thing the Court adjudges which constitutes ‑ estoppel under the doctrine of res judicata. but the reasons which the Court may give for the decision are not in themselves to be invoked as the estoppel under the doctrine of stare decisis. See Yazoo and M. V: R. Co. v. Adams 180 US 1 and Heisler v. Thomas Colliery Co. 260 US

245. Here lies the distinction , Cooley in his treatise "On the Constitutional Limitations", at page 50 while commenting on accepting adjudged cases as precedents, quotes . Chancellor Kent saying:‑‑‑ "A solemn decision upon a point of law arising in an), given case, becomes an authority in a like case because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so lone as it stands unreversed, unless it can be shown that the‑law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation. the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to ‑regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a Court of appeal or review, and never by the same Court, except for very urgent reasons, and upon a clear manifestation of error and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law. This, in my view, is a very subtle exposition of a precedent being the highest evidence of the law and holds the field so long it is regarded as a good law on the principle of stare decisis. It is clear from the above that a general decision becomes an authority in like‑case and the Judges are bound to follow the same so long as it stands unreversed. There is another verb strict condition that the binding effect would disappear if it is shown that the law was misunderstood or misapplied in that particular case. Now in the case in hand the Honourable Supreme Court has reversed the judgment of High Court, so nothing is left in the judgment of High Court to follow. The controversy as to 'judgment in personam' and 'judgment in rem' is, therefore, not relevant beyond this stage.

12. The learned counsel for the Department argued that earlier the subject was governed by The Sea Customs Act (VIII of 1878) and section 39 of the said Act dealt with short levied, evasion etc. of Customs Duty. The same was supplemented by the Customs and Tariff (Amendment) Act, 1957 (14 of 1957). Ultimately the present Act of 1969 came into force and section 31(3) is para materia to section 39 of the old Act but it extended the powers to reopen the matter besides the reasons of inadvertence etc. on the ground of misconstruction'. Subsection (3) of section 32 of Act, 1969 reads as under:‑‑‑ "Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short‑levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within six months of the relevant date requiring him to show cause why he should not pay the amount specified in the notice. " The word 'misconstruction' has not been defined in the Act or the General Clauses Act, therefore, we have to assign the dictionary meaning. In Chambers 21st Century Dictionary the word has been assigned following meaning:‑‑ "misconstruction: an interpretation that is wrong or mistaken." The learned counsel for the Department argued that while interpreting this provision the intention of the Legislature is to be seen which clearly was to arm the competent authority to reopen, reconsider any order in the given circumstances. It was stated that it is the basic principle of interpretation of) the statute that the intention of the Legislature was to be seen and given effect. In this behalf, he has referred to Crawford's Interpretation of Laws' and Maxwell on the Interpretation of Statute. There is merit in the argument that the 'misconstruction' has not been limited/qualified, therefore, it would include 'misconstruction' by Court. The argument in nut‑shell was that the High Court misconstructed the provisions of the S.R.Os. The interpretation was not approved by the Honourable Supreme Court, therefore, even if the judgments in the earlier writ petitions were binding on the Department, still the Department has the authority to reopen the same. Even in view of rule laid down in Pir Bukhsh case noted in para. 11 above, the earlier judgments in favour of the petitioner have disappeared. Moreover, no one shall suffer for an act of Court. In this view of the matter, the argument that judgment of Honourable Supreme Court would apply prospectively and rot retrospectively was irrelevant. Even otherwise the orders of assessment which were annulled by judgment of High Court were automatically restored when this judgment was set aside by Honourable Supreme Court.

13. It seemed that the anxiety of the petitioner was to delay the payment of remaining amount on account of Duties etc. This became evident from the record as the petitioner filed earlier writ petition in the year 1996 and also moved application for temporary injunction. Writ Petition No.358 of 1996 admitted to hearing on 9‑1‑1996 and a direction was issued to the respondent to clear the consignment of the petitioner without payment of Regulatory Duty subject to its furnishing indemnity bond and post dated cheques while the same order was repeated in Writ Petition No.7882 of 1996 on 12‑6‑1996. The Department after the judgment of Honourable Supreme Court in the case of Ravi Spinning Ltd. and others (supra) proceeded to serve notice dated 16‑2‑1999 on the petitioner whereby it had been directed to clear the dues. This was followed by notice dated 21-5‑1999 appended at page 57 of the file according to which, the petitioner was liable to pay a sum of Rs.80,75,802 on account of Regulatory Duty and Sales Tax. The Department alongwith the Demand Notice enclosed a statement of consignments and gave the break up of the individual consignments. The petitioner was in all supplied statement of about 150 consignments showing dues of Regulatory Duty and Sales Tax. Writ Petition No. 10050 of 1999 had become infructuous for all intents and purposes in view of the pendency of the present petition which covered the whole controversy, therefore, dismissed on 15‑7‑1999. The only additional factor was that the representation moved by the petitioner as directed by the High Court while hearing Writ Petition No.4114 of 1999 had been dismissed by the Department.

14. All these facts go a long way to show that the controversy now basically was all factual. This confirmed the impression that this petition was motivated by bad faith and the purpose was not to let the Department recover its dues. It was not out of place to mention here that all these questions could be validly raised, more properly and beneficially considered and decided with reference to individual consignments and the S.R.O. by competent authority. It was not difficult to understand why reference had not been made to individual L.Cs. and Bills of Entry. The petitioner should have challenged individual orders in forum provided under Customs Act, 1969, if genuinely aggrieved. There it could raise all points, which would be decided with reference to facts of each case.

15. The Act of 1969 provided comprehensive machinery. First Appeal is to the Collector (Appeals) while the second appeal is before the Customs, Excise and Sales Tax Appellate Tribunal and on the top of it last appeal is before the High Court in view of the provisions of section 196 as amended uptodate. The same is to be heard by a Division Bench. 16: There is general tendency to file Constitutional petitions even before permitting the Department to complete the adjudication and get the consignment cleared under the injunctory order. The purpose was to avoid or delay the payment of actual duties and taxes as long as possible. Now for example say, if the amount of duties and taxes payable in a case was Rs.50 lacs and an importer by side tracking the proceedings through a Constitutional petition delayed the payment for a year then it would continue to utilize the amount without any repercussion and on the other hand, if he had borrowed this amount from the bank he had to pay interest. The amount would remain beneficially invested and go on increasing but Department dues would remain the same. This was the sole purpose to side track the adjudication proceedings especially in the customs cases. The practice has been deprecated by the Honourable Supreme Court. I may refer to the judgment reported as Ahram Buildres (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29, where it was observed as under:‑‑‑ "

9. We may now revert to the question, whether the appellant was justified to file above Constitution petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making reference to the High Court. According to Mr. Rehan Naqvi a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitution petition. The tendency to by‑pass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discharged. However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example, when the impugned order/action is palpably without jurisdiction and/or mala fide: To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper." In the present case there were no compelling reasons to invoke the Constitutional jurisdiction after the decision of Honourable Supreme Court in the case of Ravi Spinning Ltd. and others (supra) except the over anxiety to delay the read judication. The earlier round consumed almost 3 years to conclude and this round was also likely to take another 2/3 years. The object of the petitioner would be fully served.

17. The greed has so much overpowered some individuals that they were not even mindful of the fact that if the lawful duties and taxes were not paid in time, it may adversely prejudice the security of the country both on account of aggression of enemy and failure of law and order machinery on account of lack of funds. They were so callous that they don't realize that some of the patients may suffer on account of lack of hospital facilities and may deprive a section of young generation of education on account of paucity of funds, which would be required by the Government to maintain the hospitals and schools. It was a crime against the society. The time has come where the Government should consider to recover the taxes and duties illegally and mala fide withheld together with the penalty at least at the prevalent bank rate. The Courts can also curb this tendency by awarding exemplary costs where they are convinced that the purpose was only to delay the payment of legal duties and taxes.

18. It was of utmost importance to record here that the petitioner had not pin pointed as to which of consignment had been wrongly and illegally assessed under which S.R.O. by the Department. I would say that this was again with mala fide. The petitioner was conscious of the legal position that if it alleged or pleaded for facts then it could not maintain Constitutional petition and had to resort to the remedy of appeal as provided under the Act of 1969. This would be another misconduct on the part of the petitioner. The learned counsel for the Department in this behalf rightly pointed out that the petitioner had not referred or included in the petition any individual consignment but pleaded generally. If looked from this angle, the petitioner was praying for declaration in vacuum. Whatever declaration petitioner was granted, the same had to be ultimately applied to individual consignments. This purpose can be directly achieved by assailing the order passed in individual consignments in appeal. This was not all. The petitioner, as already noted in para. 3 of the petition, was relying on four different S.R.Os. The question would arise which particular consignment was covered by a particular S.R.O. Until and unless this was done by passing orders in individual cases there was no purpose to go on mere apprehension and seek adjudication in vacuum.

19. The petitioner was in a blind alley from whatever angle and point the case was considered, the answer was only that the petitioner if aggrieved by any order, should challenge the same as provided under the Act, 1969. It was not possible to decide the matter without reference to the facts involved, which have been purposely withheld from the Court. The Department was also responsible to encourage this tendency by not enforcing the recovery promptly and effectively.

20. The controversy was all factual. The petitioner cannot seek application of a particular S.R.O. without giving the details of the L.C. and Bill of Entry etc. This can only be done in adjudication by the competent authority as even held by High Court in the judgment of Flying Board and Paper Products (supra) and in case petitioner was aggrieved of such an order he would have a remedy of three appeals in succession. The Appellate Court was fully competent to adjudicate any legal point arising in the process of deciding the appeal. In this behalf reference can be made to the judgment of Honourable Supreme Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041.

21. The argument that S.R.O. No.444, dated 13‑6‑1996 was not discussed in the judgment in the case of Ravi Spinning Ltd. and others (supra) was also without merit because the other S.R.Os. para materia have been discussed and, therefore, the same rule would apply to S.R.O.

444. This was besides the fact that petitioner was basing his case on 4 different S.R.Os. and in any case failed to refer to the L.Cs. and Bill of Entry which according to it are covered by S.R.O.

444. I may note here that the cardinal principle of drafting of statutes and legal instruments like S.R.O. was that the wording shall not be varied unnecessarily. I have seen the different S.R.C`s. issued on the same subject and the purpose of exemption but were all differently worded. The use of different phrases and words in the S.R.Os. increase the chance of litigation rather than curbing it.

22. The last question left to be dealt was that learned counsel for the Department has raised a serious objection about the filing of the present petition during the pendency of Writ Petition No.10050 of 1999. The explanation of the learned counsel for the petitioner was that this was the first petition after decision of the representation. Moreover, in para. 10 of present petition the factum of pendency of the Writ Petition No.10050 of 1999 was mentioned. The requirement is that the petitioner shall give a certificate at the end of the petition to the effect it was first petition on the subject. The admitted position was that in spite of the fact that this petition was verbatim copy of Writ Petition No. 10050 of 1999 except para.

11. The petitioner did not indicate the pendency of the Writ Petition No.10050 of 1999. This fact becomes further clear from the order dismissing the earlier writ petition which reads as under:‑‑ "The learned counsel for the petitioner states that this petition was filed as the respondents failed to decide the representation of the petitioner as directed by this Court iii earlier Writ Petition No.4114 of 1999 disposed of on 29‑4‑1999. (2) However, this writ petition was filed on 3‑6‑1999 and afterward the petitioner filed Writ Petition No.12025 of 1999, which is pending, therefore, the present writ petition has become infructuous for all intents and purposes. The same is accordingly dismissed." It was clear that the petitioner mala fide in order to obtain injunction suppressed this fact in the certificate and gave number of another writ petition to achieve this object. This was grave misconduct on the part of the petitioner. Learned counsel also failed to perform his duty to the Court as both the petitions were filed by him. The requirement of giving certificate is not serving the purpose. Time has come to consider some other strict measures, may be filing of affidavit so if the contents were incorrect then the deponent could be proceeded under section 476, Cr.P.C. read with section 193 of P.P.C.

23. The upshot of this discussion is that there is no merit in this petition. The same is dismissed with costs. Q.M.H./M.A.K./S‑458/L Petition dismissed.