2002 PLP 836 (MLD)

(1) To declare that the order dated 244‑1995 passed by the defendant No. l is illegal, unlawful and nullity in the eyes of law and based on mala fides. (2) To direct the defendant jointly and severally to refund the amount of duty drawback already paid to the plaintiff but has been recovered from the pending duty drawback claim vide order dated 24‑4‑1995 passed by defendant No. 1. (3) Cost of the suit be also awarded to the plaintiff. (4) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case. In view of the detailed arguments at length advanced by the learned counsel it was decided to admit and finally dispose of these applications by this order. Heard the learned counsel and perused the record. Mr. Raja Muhammad Iqbal, Advocate on behalf of the applicants has argued that the proceedings before the trial Court are ab initio void and without jurisdiction. The proceedings were filed before the trial Court was mala fide intentions without disclosing the correct facts and all subsequent proceedings are also a nullity in the eyes of law. Learned counsel has argued that the Customs Act is a special law enacted for the purpose of regulating the levy and collection of customs duty. For this purpose and other allied matters the Customs Act No.(IV of 1969) provides a complete board together with the mechanism for redress of grievances. Learned counsel has cited the various provisions providing for appeals and revisions as amended from time to time. These are dealt in Chapter 19 of the Customs Act which covers sections 193 to 196‑J. Section 193 provides for an appeal to the Collector and is reproduced as under:‑‑ "

193. Appeals to Collector (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 may be admitted by Collector (Appeals) if he is 'satisfied that the appellant had sufficient cause for not filing the appeal within that period. (2) An appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." The procedure for the conduct of appeal is laid down in section 193‑A. In addition a further remedy is provided by way of an appeal against an order passed by the Collector under sections 193, 195 or as an Adjudicating Authority. The constitution of the Appellate Tribunal and the qualifications of its Members are provided under section 194 of the Customs Act and are reproduced hereunder:‑‑

194. Appellate Tribunal.‑‑(1)‑‑‑The Federal Government shall constitute an 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. (2) A Judicial. Member shall be .a person who is a Judge of a High Court or who has for a period of not less than five years exercised the powers of a District Judge and is qualified to be a Judge of High Court or who is or has been an Advocate of High Court and is qualified to be a Judge of High Court. (3) A Technical Member shall be an officer of Customs and‑ Excise Group equivalent in rank to that of a Member, Central Board of Revenue. (4) The Federal Government shall appoint one of the members of the Appellate Tribunal to be the Chairman thereof. (5) The terms and conditions of appointment of the Chairman and Judicial and Technical Members shall be such as the Federal Government may determine: . Provided that where a Judge of High Court is appointed as the Chairman of the Appellate Tribunal his terms and conditions shall be the same as those of Judges of the High Court." Sections 194‑B and 194‑C laid down the conditions as to the orders of the Appellate Tribunal and the detailed procedure to be followed by the Appellate Tribunal, the constitutional benches and special bench, decision in case of difference of opinion, sittings and the power to regulate its procedure and that of the benches including the places at which the benches shall hold their sittings. Powers exercised by the Collector of Customs and in revision by the Federal Government under sections 195 and 195‑A respectively are also subject to appeal. Section 196 of the Customs Act provides for an appeal to High Court and appeal to Supreme Court is provided under section 196‑E of the Act. The above provisions were not contained in the Customs Act as originally enacted. It was by subsequent amendments made in the Customs Act, from time to time that these Special Tribunals, were created. The result of these amendments is the creation of a complete set‑up of Special Tribunal as discussed above and providing for the ultimate remedy by way of appeal to the High Court and the Supreme Court. 1t is with this background that to avoid that on coming into operation of a complete set‑up that appropriate protection is provided. This change has been effected by an amendment in section 217 of the Customs Act. This section initially barred any suit or legal proceedings done or intended to be done in good faith in pursuance to the Act or any rules. To this section subsection (2) has been added and section 217, as amended, reads as under:‑‑ "217(1). No suit, prosecution or other legal proceeding shall lie against the (Federal Government) or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules. (2) No suit shall be brought in any Civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act. " Learned counsel has argued that as a complete structure for seeking the redress of grievances has been provided, the Civil Courts in exercise of their jurisdiction are not empowered to entertain any matter falling within the scope of the powers and functions to be married on by the Appellate Authority under the above provisions of the Customs Act and protected under section 217 of the said Act and a suit is not maintainable against the orders and acts performed by officers of the Customs in the exercise of their powers under the provisions of the Customs Act as it is a special enactment and also provides for appropriate relief his right up to the stage of the High Court and Supreme Court. In support of his contentions learned counsel has placed reliance on the case of Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550, Messrs World Trade Corporation v. C.B.R. and others 1999 PTD 2341, Saleem Automotive Industries (Pvt.) Ltd. v. C.B.R. and others 2000 MLD 25, Messrs Chemitex Industries Ltd., Karachi v. Superintendent of Sales Tax and 3 others, 1999 PTD 1184, Lever Brothers Pakistan Limited through Company Secretary v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others, 1999 MLD 1925, Commissioner of Income‑tax, Companies‑II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847, Al Ahram Builders (Pvt.) Ltd. v. Income‑tax Appellate Tribunal 1993 SCMR :L9, Income tax Officer and others v. Messrs Chappal Builders 1993 SCMR 118, Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060, Khalid Mehmood v: Collector of Customs, Custom House, Lahore, 1999 SCMR 1881. All Memon Welfare Cooperative Housing Society Limited v. Barkat Ali Issani and 2 others 1993 SCMR page 1978. Mr. Mazhar Lari, Advocate for the respondents has vehemently opposed their petitions. His contention is that the trial Court passed the judgment and decree in exercise of its power as the action of the Customs Officer was mala fide, The orders passed by the Customs Officials were in furtherance of their mala fide intentions without notice and was liable to be set aside. Appeal preferred against the original judgment and decree in the Court of the III‑Additional Sessions Judge, Karachi West was barred by section 5 of the Limitation Act. Even the application for restoration was filed after delay inasmuch as limitation application was filed after a period of three months. In the absence of any cogent reasons the appeal was liable to be dismissed. That the applicant failed to make out any plausible case in appeal. The order is valid and legal that does not call for any interference at this stage. Mr. Mazhar Lari, Advocate has also moved applications pertaining to the dates of presentation and signature and has argued that the same constitutes contempt of Court. He has referred to the details mentioned in the said applications and also to the record of the learned Appellate Court in this regard. On perusal of the record, after hearing the detailed arguments of the learned counsel, the acts of filing appeals before the Member (Judicial), Central Board of Revenue, Islamabad is admitted fact. It is the action of the plaintiffs by institution of the respective suits which is alleged to be the main cause of grievance of the applicants on the ground that after following the course as provided under the provisions of the Customs Act, 1969, the respondents could not deviate from that course as provided under the law and could have pursued their claims before the High Court and thereafter even up to the Supreme Court as the hierarchy of forums is provided under the law, which in the instant case is provided under sections 194‑A, 196 and 196‑E of Customs 1969. However, the respondents instead of following their remedy, available under the Customs Act and instead of approaching the forums R available under the law initiated fresh proceedings ab initio before the learned trial Court. Such practice has been discouraged by the apex Court in the case of Commissioner of Income‑tax v. Hamdard Dawakhana (Waqf) (PLD 1992 SC 847) wherein the Hon'ble Supreme Court has been pleased to observe as follows:‑‑ "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 a recent judgment of this Court in C.A. No.79‑K of 1991, one of us (Ajmal Mian, J.), in similar situation observed as follows:‑‑‑ 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 a 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 bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discouraged. 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, the appellant had opted to avail the hierarchy of forums provided for under the Ordinance up to the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet‑will switch over to Constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason." In Al Ahram Builders' case (1993 SCMR 29) also the Hon'ble Supreme Court has held as under:‑‑ "In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance up to the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet‑will switch over to Constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason. " . I am in respectful agreement with the above view of the Hon'ble Supreme Court the suits instituted before the trial Court were ab initio without jurisdiction and not maintainable as the applicants in those suits and respondents opted to avail the forums provided under the Customs Act; 1969 and in the present case had referred the matter before the Departmental Authorities and pursued their remedy and on their approaching the concerned authority, the Authorities had already exercised their jurisdiction under the provisions of Customs Act, 1969 after which the jurisdiction to hear the appeal lies with the Customs Tribunal under section 194 and in the High Court under section 196 and before the Supreme Court under section 196‑E of the Customs Act, 1969 and constitutes a case calling for setting aside the impugned judgments under provision of section i15 of the Civil Procedure Code. In view of the above position the proceedings were ab initio without jurisdiction and all subsequent orders, judgments and actions are of no legal effect. Accordingly these revision applications are allowed with no orders as to costs. The orders passed by the learned Appellate Court and the trial Court are set aside in the above cases and the listed applications are dismissed. S.A.K./C‑45/K Order accordingly.