1997 PLP 574 (CLC)

Date of hearing: 30th October, 1996. According to the averments made in this Constitutional petition, the petitioner‑Company carries on jute business and for this purpose it imports raw material. It is asserted that vide Notification No.490(I)/95, dated 14‑6‑1995, the petitioner's imported items were granted certain exemptions. It is claimed that availing of the incentives granted by the notification, the petitioner‑Company imported large consignments against various bills of entry (the detail of the imports is given in para.l of the grounds), and paid the amounts mentioned against each. It is further averred that later on, vide notification dated 29‑10‑1995, the exemptions were withdrawn. Petitioner's case is that respondent had no right to recover the amounts which were exempted under the earlier notification and where the letters of credit were established or imports were made during the subsistence of the exemption notification. The prayer made is:‑‑ "In these circumstances it is most humbly prayed that this writ petition may kindly be accepted with costs. The levy of the regulatory duty on petitioner's raw material imported under L.Cs. narrated above may kindly be declared to be without lawful authority and a nullity in the eyes of law and consequently the money paid against regulatory duty for which petitioner has exemption under section 19 of the Customs Act may please be ordered to be refunded and the respondent be directed not to charge/levy Regulatory duty on the consignments of the petitioners. It is further prayed that any other relief deemed fit may also be granted."

2. Learned counsel appearing for the respondent has objected to the maintainability of this petition at this Bench. It is stated that although not mentioned deliberately in the petition, all the consignments were cleared at the Karachi Port under the orders of the Collector of Customs/his subordinate and, if the petitioner now wants a declaration of the invalidity of the payments, the petitioner will have to file a petition in the Sindh High Court and that also after exhausting alternative remedies before the statutory authorities mentioned in the Customs Act, 1969. It is further contended that all the payments were made without demur and protest and the present claim of the petitioner is an afterthought. Non joinder of the concerned functionaries like appraising Officer, Deputy Collector and Collector of Customs, Karachi, is also objected to as being fatal on the ground that they are the necessary parties and even if this Court is possessed of jurisdiction, no order can be passed without hearing those functionaries.

3. In reply, the learned counsel for the petitioner has strenuously maintained that impleading of Central Board of Revenue, Islamabad, (hereinafter referred to as the C.B.R.), is sufficient because the Collector of Customs etc. work under the C.B.R. and the impleading of the Collector etc. is not necessary. It is also claimed that unconditional payment by the petitioner cannot operate as a waiver of the right of the petitioner to impugn the payments.

4. A perusal of the petition shows that necessary particulars have not been pleaded either by design or through inadvertence. The draftsman has seemingly alleged the facts in general terms. During the course of hearing today, it was with difficulty that learned counsel admitted that all the consignments mentioned in para.I in the grounds were in fact imported through sea, were received at Karachi Port and were cleared on the bills of entry tiled by the petitioner.

5. In view of the statement of the learned counsel, all the transactions took place at Karachi Port. In other words the goods arrived at Karachi Port, the bills of entry were filed with the Collectorate of Customs, Karachi, the duties etc. were assessed under the orders of the competent statutory functionary at Karachi and ultimately after payment of the taxes and duties, all the consignments were cleared from Karachi. From these admitted facts two questions arise. One, if aggrieved, where should the petitioner sue and, two, whether in the absence of any protest/demur, the petitioner should be held to be estopped from turning around and claiming the payments already made. Another relevant question arising is whether the petitioner should file the recovery suit for payment already made or can he claim the amounts through Constitutional jurisdiction. In this judgment I will deal with the first question because in my view the same can decide the fate of the case in so far as this Court is concerned.

6. In view of the admitted position, the cause of action arose to the petitioner at Karachi. The taxes and duties were assessed by the statutory functionary (not impleaded herein) at Karachi. Merely because the petitioner is resident of Rawalpindi or is having its registered office there, is not enough to give territorial jurisdiction to this Court at Rawalpindi, and further merely because C.B.R. has its main office at Islamabad, an area territorially within the jurisdiction of this Bench, is not enough to give jurisdiction to this Court. The C.B.R. is an independent functionary under the law creating it. Se, are the Collectors, Deputy Collectors, Assistant Collectors, Appraisors and hoste of other functionaries who are created under the Customs Act, 1969 and who operate within the framework of law creating them and conferring power on them. The C.B.R. under the law creating it is sitting at the apex of those functionaries. The cause of action arises against the act of the statutory functionary at the place where the statutory functionary has passed the order. Merely because a superior officer/authority of the statutory functionary is located in Islamabad/Rawalpindi, would not be a good ground to hold that this Court has the jurisdiction. It is correct that the notifications of exemption as well as withdrawal have been issued by the C.B.R., but the enforcement of the notifications takes place and, in this case, has taken place at Karachi. It is the enforcement or the implementation or refusal of implementation of the notifications that furnishes cause of action. Admittedly refusal in this case to give exemption to the petitioner‑Company has taken place at Karachi. I therefore, hold that mere issue of notifications by the C.B.R. or mere presence of the C.B.R. at Islamabad/Rawalpindi will not suffice to confer territorial jurisdiction over the dispute in this case on this Court. It also need be noted that the Federal Authorities like the C.B.R. operate throughout Pakistan and they have their offices throughout Pakistan. The argument, therefore, that merely because C.B.R. is located at Islamabad this Court should intervene, loses efficacy.

7. Learned counsel for the petitioner has relied on M/s. Tharparkar Sugar Mills Ltd. v. Federation of Pakistan through Secretary, Revenue Division and Chairman, C.B.R., Government of Pakistan, Islamabad etc. (PLD 1996 Karachi 276), for proposition that this Court has the territorial jurisdiction in this case. I have examined the judgment. The same is not relevant and does not answer the question involved. While decided cases are of course relevant for resolving the controversies, but in this case the wording of Article 199(1)(a)(i) and (ii) is very clear and it is to the effect that a High Court can issue directions to a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the federation, a province

As noted, the implementation or refusal to implement exemption notification has taken place at Karachi by a Collector/Deputy Collector, who is admittedly performing functions in connection with the affairs of the Federation. On the wording of Article 199 alone, this Court has no jurisdiction nor the presence of C.B.R. within the territorial limits of this Court is enough to issue directions to a Collector/Deputy Collector at Karachi. The judgment of learned Single Bench of this Court reported as M/s. Nadia Ghee Mills v. Federation of Pakistan etc. (PLD 1992 Lah. 399) holds the same view and I am in complete and respectful agreement with the same. For the reasons I hold that this petition is not maintainable in this Court and the same is hereby dismissed with costs. A.A./S‑88/L???????????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.