2001 PLP 1477 (CLC)

3. Mr. A. Karim Malik, Advocate for the respondents submits that vehicles in question is not mentioned in the notification of the respondents dated 18-10-1982. Therefore, action of the respondents is valid in the eyes of law. He further submits that notification cannot override section 25(2)(b) of the Customs Act. The action of the respondents is in accordance with section 25(2)(b) of the Customs Act, 1969. He further submits that petitioner claimed exemption. It is the duty and obligation of the petitioner to proof his entitlement on the basis of notification or rule of the respondents but the petitioner failed to bring on record any notification of the respondents on the basis of which the petitioner is entitled for exemption. He further urged that notifications and correspondence between the C.B.R. and the Collector does not debar the petitioner to avail remedy under section 195 before the Central Board of Revenue and before the Federal Government by virtue of section 195-A of the Customs Act. He further urged that Federal Government is not subordinate to the Central Board of Revenue He further submits that appeal of the petitioner was dismissed on merits as well as time barred as is evident from last para. of the impugned order of the Collector Appeals. He further submits that vehicles of the petitioners are not mentioned in any of the item mentioned in notification dated 18-10-1982. He further urged that it was not consistent and 'uniform practice of the department as is evident from correspondence between the Collector Customs, Lahore and C.B.R. which are attached as Annexures "J/1", "J/Il" and Annexure "K" with the writ petition that practice of Collectorate Custom, Lahore and Collectorate Custom, Karachi are not uniform. Therefore, contention of the learned counsel for the petitioner that action of the respondent is in violation of the consistent practice of the department is not sustainable in the eyes of law. In support of his contention he relied upon Messrs Dada Soap Factory PLD 1984 Kar.

302. He further submits that instructions issued by Central Board of Revenue cannot be with a legislative instrument. He relied upon Messrs Army Welfare Sugar Mills' case 1992 SCMR 1652. He further submits that doctrine of promissory estoppel cannot be invoked against the Legislature. In support of his contention he relied upon Salah-ud-Din's case PLD 1991 SC

546. He further submits that petitioner cannot be allowed to frustrate provisions of law by dexterously having recourse to evasive tactics to avoid to pay duties under the provisions of Customs Act and Rules, notification issued by the competent authority. In support of his contention he relied upon Chenab Woollen and Textile Mills' case PLD 1968 Lah. 1116. He further submits that respondents have authority to take action against the petitioner under section 32 of the Customs Act, 1969.

4. Mr. Azha;-ul-Haque, Advocate for the respondents submits that petitioner filed appeal before the Collector which was dismissed. Thereafter, petitioner filed present writ petition without exhausting remedies available to the petitioner under the provisions of Customs Act, 1969. He further urged that once the petitioner had adopted a specific procedure to avail alternative remedy by filing appeal before the Collector Customs. Thereafter, the petitioner had to resort all the remedies as the petitioner did not file writ petition against the original order of the respondent No.2 in writ petition and had availed one right of appeal before filing this writ petition. He further submits that petitioner failed to point out that orders passed by the respondents is without lawful authority, coram non judice and mala fide: He summed up his arguments that in the present circumstances, the writ petition is not maintainable and is liable to be dismissed in view of alternative remedy available to the petitioner. In support of his contention he relied upon Alahram Builders' case 1993 SCMR 29.

5. Learned counsel for the petitioner in rebuttal submits that Appellate Tribunal dismissed the appeal without adverting to the facts of the case and provisions of law. The impugned order of Assistant Collector was received by the petitioner on 20-7-1988 and petitioner filed appeal well in time as is evident from the impugned order that the appeal was received in the Office of Collector Appeals on 16-8-1988. Petitioner had to file appeal within one month after receiving the order of the Assistant Collector as is evident from section 193 of the Customs Act, 1969. He further submits that writ petition was admitted for regular hearing in the year 1989 whereas the respondent filed written statement in the year 2000 and raised a preliminary objection that writ petition be dismissed in view of alternative remedy should be ignored as the respondents did not take the preliminary objection in their report and parawise comments. He further submits that word "Transit Van and pick-ups and Hiace Vans are interchangeable as defined in Webster's Dictionary.

6. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. Firstly, I would like to decide the preliminary objection whether writ petition in presence of alternative remedy is maintainable or not. It is better and appropriate to reproduce the relevant provisions of the Customs Act to resolve the controversy between the parties:-- "

193. Appeals.

(1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Collector of Customs (other than a notice of demand served under section 202) may appeal to the Collector (Appeals) within thirty days of the communication to him of such decision or order: Provided that an appeal filed after the expiry of thirty days tray be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not filing the appeal within that period.

194. Appellate Tribunal.

(1) The Federal Government shall constitute Appellate Tribunal to be called the Customs, Excise and Sales Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.

195. Powers of Board of Collector of Customs to pass certain orders.-- (1) The Board or the Collector of Customs tray, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality- or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit. 195-A. Revision by the Federal Government.

The Federal Government may, op the application of any person aggrieved by any order passed under section 193, where the order is of the nature referred to in the first proviso to subsection (1) of section 194-A annul or modify such order." The aforesaid provisions reveal that Customs Act, is a special law which provides different remedies to the aggrieved persons up to the level of Federal Government. In the present case the petitioner has only availed one remedy of appeal before the Collector Appeals who forwarded the impugned C order to the petitioner which contain in title page vide Item No.9 that appellant had alternative remedy to file revision before the Federal Government within 30 days of the date of receipt of the order. The appellant .did not avail any of the aforesaid remedies and filed this writ petition. Petitioner has filed this writ petition under Article 199 which imposes certain limitations for entertaining the writ petition. The relevant sub-Article (1) of Article 199 is reproduced hereunder. "Subject to the condition the High may, if it is satisfied that no otter adequate remedy is provided by law". The aforesaid article reveals where it is open to an aggrieved person to move another forum or tribunal for his remedy in the manner prescribed in a statute, the High Court will not by entertaining petition under Article 199(1) permit the machinery provided in a statute to be bypassed. It is primarily a discretion of the Court to grant or refuse the relief if it is satisfied that an aggrieved party can, have an alternative remedy elsewhere coupled with the principle that relief under Article 199 is not to be provided where the alternative remedy exists is now well-founded unless there are any exceptional reasons warranting exercise of extraordinary powers under the aforesaid Article The exceptional circumstances which are settled by the I superior Courts where the impugned order suffers from:-- (i) Wholly without authority; (ii) without jurisdiction of functionary; (iii) functionary acted mala fide or unjust manner. It is also settled principle of law that existence of an alternative remedy by way of appeal or revision is no bar if the case falls in the exceptional circumstances stated above. It is also settled principle of law that rule of alternative remedy is a rule of discretion. Learned counsel for the petitioner relied upon Mst. Hussain Bibi's case 1976 SCMR

395. This case is distinguished on facts and law because in this case the writ petition was entertained as the impugned order was passed without providing personal hearing to the aggrieved person whereas in the present case the order was passed after providing personal hearing to the petitioner. Learned counsel for petitioner further relied upon Ghazi Fabric International Ltd.'s case PLD 2000 Lah.

349. In this case the Division Bench entertained petition in which remedy of suit was not available in the statute to the petitioner and the same was not equally efficacious remedy and the order was passed against the petitioner without providing personal hearing. Therefore, this case has also distinguished features. Learned counsel for petitioner further relied upon Alam (Private) Ltd.'s case 2000 CLC 1485. In this case the writ petition was entertained only on the ground of question of law regarding to construction section 9 of the Punjab Finance Act, 1997 was involved whereas in the present case the petitioner has not challenged the vires of any law. Collector of Customs, Customs House's case 1999 SCMR

138. In this case the writ petition was entertained as the Central Board of Revenue had already expressed its opinion It is pertinent to mention here that in the present case the petitioner has alternative remedy before the Federal Government under section 195-A of the Customs Act and Federal Government has not expressed any opinion in the present case. Tripple EM (Pvt.)'s case 1998 CLC

187. In this case the writ petition was entertained as the Custom Authority had admittedly passed no order in writing. Mrs. Shreen G. Kandawala's case PLD 1989 Kar.

471. In this case the objection was overruled as the respondents failed to raise preliminary objection at the earliest opportunity. In the present case the title of the impugned order contained Item No.9 that the petitioner had Jto file revision petition before the federal Government within 30 days of the date of receipt of the impugned order as is evident from Annexure "I/1" page

57. Messrs Kamran Industries' case PLD 1996 Kar.

68. In this case the writ petition was entertained as the impugned action was completely without jurisdiction whereas in the present case petitioner filed appeal himself before the Collector Appeals who dismissed the same. In this view of the matter order cannot be said to be without lawful authority. On the well-known principle mere erroneous exercise of jurisdiction does not render the order passed by the authority/Court of competent jurisdiction to be illegal and without lawful authority so as to be amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution as per principle laid down by the Honourable Supreme Court and this Court in the following judgments:-- Sh. Gulzar Ali's case 1991 SCMR 590 and K.M. Asif's case PLD 1976 Lah.

158. In view of above, petitioner's case does not fall in the exceptional circumstances and the judgments cited by the learned counsel for the petitioner are distinguished on facts and circumstances as highlighted supra. It is admitted fact that petitioner has alternative remedy to agitate the matter before 'the Federal Government. My learned brother the then Ihsan-ul-Haq Chaudhry, J. has considered this proposition of law in Writ Petition No.4174 of 1998 and laid down the following principle. "There is recent tendency to file Constitutional petitions without exhausting the remedies under the statute. This recent trend is dangerous". Ti Honourable Supreme Court clearly held in the case reported as Pir Sabir Shah's case PLD 1995 SC 66, The Collector Customs, Karachi's case PLD 1994 SC 366 and Rifat Askari's case PLD 1997 Lah.

285. The aforesaid proposition of law that writ petition is not maintainable in presence of alternative remedy unless and until exceptional circumstances exist in a case td exercise extraordinary jurisdiction as per' principle laid down by the Honourable Supreme Court in the following judgments: Kh. Muhammad Munir's case 2000 SCMR 702, Badrud-Din's case PLD 1993 SC 399, Abdur Rehman's case PLD 1983 SC 21 and Messrs Chappal Builders' case 1993 SCMR 1108 and relevant observation is as follows:-- "When after considerable arguments we had already reached the above conclusion and had also announced it and the consequential dismissal of the appeals was yet to be announced, the learned counsel for the appellants brought to our notice that the respondent in this case approached the High Court in its writ jurisdiction without seeking and exhausting the statutory remedies. In several of the very recent judgments we have not approved in such situation the interference by the High Court in tax matters, when the normal course being adopted by almost all the High Courts in matters other than tax, rule of alternate remedy is being followed. In the above extraordinary position when we had made part announcement, there is no alternative left except to withdraw the leave grant order and dispose of the appeal. We order accordingly, with no order as to costs." Shaukat Afzal's case 1993 SCMR 1810. "Before parting with the judgment we may observe that in cases where any party resorts to a statutory remedy against an order he cannot abandon or bypass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy up to High Court, cannot be approved or encouraged. " In view of what has been discussed above, this writ petition is not maintainable and I am not inclined to consider the arguments of both the parties on merits as per principle laid down by the Honourable Supreme case 2000 SCMR 65 coupled with the fact that I have already taken the aforesaid view in Writ Petition No.21188 of 1998 Keeping in view the principle of consistency I am not in a position to deviate from my earlier view as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan's case PLD 1959 SC (Pak.)

9. In view of what has been discussed above, the writ petition is not maintainable. The petitioner if so advised shall avail alternative remedy under the law before the competent Authority. H.B.T./R-48/L Petition dismissed.